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

[Stillwater Rising]

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 at 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."



On Thu, May 13, 2010 at 8:25 PM, Nathan <nawrich at gmail.com> wrote:

> 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
>
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