[Foundation-l] Legal requirements for sexual content -- help, please!

[Nathan]

On Thu, May 13, 2010 at 6:26 PM, Andreas Kolbe <jayen466 at yahoo.com> wrote:
> 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_Using_USC_2257_on_Wikimedia_Projects
>
> 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
>

I'm not sure the presence or absence of a legal imperative is fully
relevant to the underlying question. The Commons project has a moral
responsibility to take reasonable steps to ensure that subjects of
sexually explicit media are (a) of legal majority and (b) have
provided releases for publishing the content. The regulations exist
for a good reason - to protect the subjects of photos from abuse and
invasion of privacy. Why should we avoid taking those same steps?

Nathan