I can accept that Commons may not fit under the definition of "secondary producer." However, when Wikipedians choose a sexually explicit image from Commons, the crop it and add a caption, this may fall under the "selection or alteration of the communication" exception.
Now consider that Wilipedia publishes print versions, encourages mirroring, as well as makes articles available as PDF files, this seems like Wikipedia (and thereby WMF) would qualify as a secondary producer.
On May 20, 2010, at 1:37 AM, wjhonson@aol.com wrote:
You are missing the key point. The pivot upon which the issue turns is not whether or not a site is non-commercial or educational. The pivot is whether the site itself creates the content, or whether it merely hosts the content.
Wikimedia Commons is more likely to be viewed as a host agent like Flicker or Facebook, and not a creator. A host does not have a legal requirement to maintain any records of this sort.
-----Original Message----- From: Stillwater Rising stillwaterising@gmail.com To: Wikimedia Foundation Mailing List <foundation-l@lists.wikimedia.org
Sent: Wed, May 19, 2010 10:03 pm Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, please!
The list of advantages for helping uploaders (producers) to comply with USC 2257 record-keeping guidelines are numerous, and was the core part of my April 2010 sexual content proposal. To clarify, I did not then and still do not believe OTRS should be directly handing Personally Identifying Information (PII) for sexual content, but should have a way of verifying that it exists by at least keeping on file the name and address of the individual(s) who are keeping the records. Mr. Sabol (below) thought that Wikimedia should be setting an example of how educational institutions can handle this issue responsibly.
In my opinion, the advantages of obtaining this information far outweigh potential disadvantages. I've listed the advantages in multiple places, so I'll just give a link to the latest discussion here<http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#The_Case_for_U...
.
The unfortunate part is that there's no support for this idea from the legal council, in fact Mike Godwin's statements seem to indicate that we should not be concerned with these records at all. This is unfortunate, because there is no clear exemption for non-commercial or educational websites.
On Wed, May 19, 2010 at 7:31 PM, David Goodman dgoodmanny@gmail.com wrote:
This seems self-contradictory. If we are exempt we're exempt. If we're exempt we have no need to keep records. We would of course do well to advise our users about their own responsibilities.
If we do decide to require some sort of certification--and I do not oppose our doing so-- it raises the question that if we do it in such a manner as to match the requirements of US law, even to the extent of making use of a service set up specifically to meet that law's detailed requirements, whether we would not be perhaps admitting in advance that us law applies to us in this respect, and forfeiting our defense that we are not a producer?
David Goodman, Ph.D, M.L.S. http://en.wikipedia.org/wiki/User_talk:DGG
On Wed, May 19, 2010 at 4:16 PM, Stillwater Rising stillwaterising@gmail.com wrote:
I contacted Drew Sabol; professor, attorney, and owner of a 2257 record-keeping service called 2257services.net<
http://www.2257services.net/%3E
.
His opinion is the Wikipedia is something like a social networking site
that
accepts user submission. The Department of Justice (DOJ) put out an
update
that discusses how child pornography laws apply to small business here: http://18usc2257.org/literature/DOJ-2257ComplianceGuide.pdf
On the top of page 4 there's a FAQ section that says:
*Q. How does the rule apply to social networking sites?* A. Most social networking sites would not be covered by the rule because
its
definition of “produces” excludes “the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the communication.” Social networking sites would not then normally need to comply with the rule’s record-keeping requirements, labeling requirements, or be required to maintain information concerning their users, and the rule
would
therefore have no effect on the operations of the site. However, users of social networking sites who post sexually explicit activity on “adult” networking sites may well
be
primary or secondary producers. Therefore, users of social networking sites may be subject to the rule, depending on their conduct.
He considers Wikipedia to be a social networking site therefore should
not
be considered a secondary producer (we do have "selection or alteration
of
the communication" however). He thinks we should find a way to make sure that uploaders (who are primary producers if "own work" or secondary producers if somebody else's) should be keeping records and there are several ways to do this. We also need to report any suspected illegal
images
to the proper authorities.
Since Drew runs a contract record keeping service, he said he would be willing to work out a deal with the Board of Trustees to modify his
website
so individual users can log in and upload records while OTRS maintains administrative rights to verify the records exist. His usual cost (after
set
up fees) is $1.00 per record. His email is admin@2257services.net and he
is
willing to discuss the matter with a Board of staff member who would like
to
know more.
More information: Generic model affidavit: https://www.2257services.net/forms/model-affidavit.html Bloggers Legal Guide: http://www.eff.org/issues/bloggers/legal/adult
*On Adult Material*: "The regulations imply that the record-keeping requirement is restricted to commercial operations. This would seem to exclude noncommercial or educational distribution from the regulation,
and
to limit secondary publishing and reproduction to material intended for commercial distribution. However, the DOJ has left wiggle-room, and it is still unclear if they intend to go after noncommercial websites."
foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
On Thu, May 20, 2010 at 11:33, Still Waterising stillwaterising@gmail.com wrote:
I can accept that Commons may not fit under the definition of "secondary producer." However, when Wikipedians choose a sexually explicit image from Commons, the crop it and add a caption, this may fall under the "selection or alteration of the communication" exception.
You're misunderstanding the word "operators" here. The only people who matter for the "selection or alteration of the communication" are the Wikimedia Foundation: the board members and the foundation employees. Everyone else, no matter what on-site title they have, is simply a user of the site.
I guess people the world over know that at least one member of the board has been quite active in the selection process of late. ;)
Also, in cases of illegal content, the Foundation may well find -- or have found -- itself in a position to direct that material be deleted, thus playing an active role in the selection of what material to present. And the Board has released statements on policy in this regard.
Andreas
--- On Thu, 20/5/10, Mark Wagner carnildo@gmail.com wrote:
From: Mark Wagner carnildo@gmail.com Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, please! To: "Wikimedia Foundation Mailing List" foundation-l@lists.wikimedia.org Date: Thursday, 20 May, 2010, 21:55 On Thu, May 20, 2010 at 11:33, Still Waterising stillwaterising@gmail.com wrote:
I can accept that Commons may not fit under the
definition of
"secondary producer." However, when Wikipedians choose
a sexually
explicit image from Commons, the crop it and add a
caption, this may
fall under the "selection or alteration of the
communication" exception.
You're misunderstanding the word "operators" here. The only people who matter for the "selection or alteration of the communication" are the Wikimedia Foundation: the board members and the foundation employees. Everyone else, no matter what on-site title they have, is simply a user of the site.
-- Mark [[User:Carnildo]]
foundation-l mailing list foundation-l@lists.wikimedia.org Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
wikimedia-l@lists.wikimedia.org