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

[David Goodman]

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 at 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 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
>>
>> _______________________________________________
>> foundation-l mailing list
>> foundation-l at lists.wikimedia.org
>> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>>
> _______________________________________________
> foundation-l mailing list
> foundation-l at lists.wikimedia.org
> Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
>