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

[Andreas Kolbe]

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