Jehochman has suggested that we need legal advice from the Foundation at
http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content
with respect to § 2257[1}, and I tend to agree with him. The relevant discussion is here:
http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#The_Case_for_…
Editors have stated that the record-keeping requirements of § 2257 do not apply to
Commons. Do we have a qualified legal opinion that backs this assertion up?
From reading § 2257, it seems it is written with commercial providers of sexually explicit
material in mind. Commons is not a commercial provider of such works. On the other hand,
Commons licences state that material hosted on Commons is good for any use, including
commercial use. This makes Commons a potential link in a chain leading to commercial use
of material uploaded to Commons.
Note that per § 2257 (h)(2)(iii), anyone
"inserting on a computer site or service a digital image of, or otherwise managing
the sexually explicit content of a computer site or service that contains a visual
depiction of, sexually explicit conduct"
is liable to receive a prison sentence of up to 5 years, for a first-time offence, if they
fail to comply with the record-keeping requirements of § 2257.
Doesn't this raise the possibility that Commons administrators might become personally
liable if, for example, they decide to keep a sexually explicit image that is subsequently
found to have depicted a minor?
There are other aspects involved in drafting Commons:Sexual_content that need expert legal
input, for example, which types of pornography are legal in the US, and which ones are
not.
We are all laypersons there, so please help us out.
Andreas
1
http://www.law.cornell.edu/uscode/718/usc_sec_18_00002257----000-.html