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

[Ray Saintonge]

wiki-list at phizz.demon.co.uk wrote:
> Mike Godwin wrote:
>   
>> wiki-list at phizz.demon.co.uk writes:
>>
>> Across the world the "Nobody is home" argument is quickly running out of
>>     
>>> steam. Google execs sentenced to 6 months in Italy, LimeWire guilty for
>>> its user's piracy, and blog owner found liable for user submitted libel.
>>>       
>> It helps to actually read the stories and understand the cases. The Google
>> execs were found guilty even though they quickly responded to a complaints
>> and removed the offending video. In other words, they didn't make the
>> "nobody is home" argument.
>>     
> The point being made is that courts are taking a narrow reading of the 
> exemptions. At issue is going to be whether Congress having passed 2257 
> did they intend for the safe-harbor exemptions to allow an organization 
> to evade those regulations simply by allowing anonymous users to upload 
> pornographic content.
>   

You can't effectively use eccentric results as a straw man to build a 
general trend in law. The interpretations of a local court only have a 
limited value as precedent. Whether it's the exemptions or the main 
provision that will be read narrowly in the long term remains to be 
seen.  There are too many individual words in there that are open to 
interpretation, even before you get into free speech arguments.

>> And the blog owner actually hasn't been found liable for user-submitted
>> libel in the Register story published. As the story is reported, the blog
>> owner has merely been told that moderation of content runs the risk of
>> *creating* liability by removing the exemptions for mere hosts. The decision
>> is regarding a pre-trial motion. In other words, the case has precisely the
>> opposite meaning of what wiki-list writes here, since it focuses on the
>> risks of moderation, not the risks of non-moderation.
>>     
> The foundation or the site admins do moderate. The foundation or they DO 
> have the power, to delete submissions that are considered  non 
> encyclopedic, trolling, libelous and etc. There is constant moderation 
> on by or on behalf of the foundation. If not teh Foundation then the 
> admins have responsibility. The foundation is not acting simply as a 
> hosting site that merely stores user submitted data.
>   

This does not exempt anyone from being realistic. The Foundation, as a 
corporate person, has no knowledge of its own. Being "pornographic" is 
meaningless to a corporation, because corporations are incapable of 
having sex. For a corporation to have knowledge of something there must 
be evidence that it received that knowledge, and that includes 
transmission of the fact that such knowledge was in fact illegal.  
Someone saying that a particular image is pornographic is not enough.  
Similarly, some nutter with an axe to grind could go to the FBI with 
claims about pornography on some specified site, but if they took the 
time to thoroughly investigate every such complaint they would have no 
time left to do anything useful. Whether a particular image is 
pornographic is a matter of opinion, and it should not jump to comply 
with every random complaint.

Yes, there are admins who do moderate.  I'm sure that many of them 
purport to be doing so in bealf of the Foundation. Their rights, 
however, do not derive from any action by the Foundation but from the 
action of other admins or volunteer whose own authority does not extend 
beyond being purported.

>> With regard to the Google case, at least, it looks like taking
>> responsibility doesn't protect you, and with regard to the libel case,
>> moderation increases your risk of liability by undermining your statutory
>> exemption.
>>     
> So your advice is that in the area of pornographic content the 
> Foundation is best advised to open the flood gates. Will sticking your 
> head in the sand that work for pornographic content alone, or will you 
> have to do the same with all content. No selection for encyclopedic 
> value or notability, because if any of that goes on one might ask why 
> you are deliberately NOT going so for porn?

The subtlety of the situation clearly escapes you. A track record of 
moderating only proves that you are capable of doing it.  My own feeling 
is that the Foundation itself should not engage in such acts in the 
absence of a formal legal notification about offending material.  This 
doesn't stop admins from acting to delete such material, but they do so 
on their own authority. As representatives of the community they are a 
part of the structure that defines community norms about pornography as 
well as other matters.

Ec