On Thu, May 31, 2012 at 6:10 PM, Andreas Kolbe <jayen...@gmail.com> wrote:
> No. Record-keeping is required by law for images whose production involved > actual people engaged in sexually explicit conduct, meaning "actual or > simulated—(i) sexual intercourse, including genital-genital, oral-genital, > anal-genital, or oral-anal, whether between persons of the same or opposite > sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic > abuse; or (v) lascivious exhibition of the genitals or pubic area of any > person." > > http://www.law.cornell.edu/uscode/text/18/2256 > > If creation of the image did not involve real people engaged in such > conduct, no record-keeping requirements apply. > > Note that while the Wikimedia Foundation, due to Section 230(c) safe > harbor provisions, does not have a record-keeping duty here, my layman's > reading of http://www.law.cornell.edu/uscode/text/18/2257 is that every > *individual > contributor* who > > – uploads an image depicting real people engaged in sexually explicit > conduct, or > – inserts such an image in Wikipedia, or > – manages such content on Wikimedia sites, > > thereby becomes a "secondary producer" required to keep and maintain > records documenting the performers' age, name, and consent, with failure to > do so punishable by up to five years in prison. > > Note that this includes anyone, say, inserting an image or video of > masturbation in a Wikipedia article or categorising it in Commons without > having a written record of the name, age and consent of the person shown on > file. > > I've asked Philippe Beaudette to confirm that this reading is correct. He > has said that while they cannot provide legal advice to individual editors, > they will put someone to work on that, and that it will be a month or so > before they can come back to us. > Let me try and give the whole context here. Actually, the Wikipedia article[1] on this subject explains the situation much better. I'm sure, finer legal minds reading this can correct where I go wrong. I am a layman too, and this is my inference from reading about the subject. The law you are speaking of is part of Child Protection and Obscenity Enforcement Act of 1988 or and the guideline enforcing them is 2257 Regulations. It actually placed the burden of record keeping, on the primary producers, as in, who is "involved in hiring, contracting for, managing, or otherwise arranging for, the participation of the performers depicted,". In its original form, it only placed the burden on producers of pornographic material to comply with record-keeping. Now, things got complicated when DOJ added an entirely new class of producers you speak of "secondary producers", anyone who "publishes, reproduces, or reissues" explicit material. This is where things get complicated. What followed was a circuit court decision, and other proceedings, that ruled these requirements were facially invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech. The real question now becomes about its enforcement. Much of the sexual material on the internet, even depiction of works of art several hundred years old, any form of nudity even for educational, anatomical purposes might fall under this law (lascivious exhibition of the genitals or pubic area of any person). The burden on service providers, and hosting websites would be massive to speak of - consider the implication on Facebook for example, or Flickr, or even Google, being responsible for linking every single image in results, they don't possess the proper records of the depicted subjects, which might very well number into tens of millions. Maybe that's why, it has been implemented only in one specific case primarily based on the new 2257 law and related legislation. The case was against Joe Francis, the originator of "Girls gone Wild" series. Also, of relevance might be that the series in question only depicted nudity, and not any sexual act. Even these charges were for the most part dropped later on. Regards Theo [1]http://en.wikipedia.org/wiki/18_USC_2257
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