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(a)gmail.com>
To: Wikimedia Foundation Mailing List <foundation-l(a)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
.
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(a)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(a)gmail.com> wrote:
I contacted Drew Sabol; professor, attorney, and
owner of a 2257
record-keeping service called 2257services.net<
http://www.2257services.net/>
.
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(a)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."
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