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

[wjhonson at aol.com]

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 at gmail.com>
To: Wikimedia Foundation Mailing List <foundation-l at 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
here<http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#The_Case_for_Using_USC_2257_on_Wikimedia_Projects>
.

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 at 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 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."
>
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