On 31 May 2012 14:10, Theo10011 <de10...@gmail.com> wrote: > 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. > > That's pretty important then, right? Because IIRC circuit court decisions inform judgement in later such cases - and the only way the legal interpretation can be rejudged is in a full appeals court?
Tom
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