On Thu, May 31, 2012 at 2:15 PM, Thomas Morton <morton.tho...@googlemail.com > wrote:
> 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 > Tom, the Wikipedia article continues as follows (my emphases): ---o0o--- On October 23, 2007, the 6th Circuit U.S. Court of Appeals<http://en.wikipedia.org/wiki/United_States_Court_of_Appeals_for_the_Sixth_Circuit> ruled the federal record-keeping statute unconstitutional, holding that the law is overly broad and facially invalid.[1]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-Court_Opinion-0> The Sixth Circuit subsequently *reheard the case **en banc<http://en.wikipedia.org/wiki/En_banc> ** and issued an opinion on February 20, 2009, upholding the constitutionality* of the record-keeping requirements, albeit with some dissents.[3]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-uscourts1-2> Proposed regulations On July 12, 2007, the Department of Justice issued a preliminary set of addendum record keeping regulations based on the Walsh Act amendments onto the existing regulations at 25 C.F.R. pt. 75.[16]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-15> These new regulations are meant to encompass the inclusion of simulated sexual actions that do not actually show explicit sexual contact or fulfillment that were included by the Adam Walsh Act that was signed into law in 2007. These new regulations were allowed in actual legal enforcement by the *dismissal of its constitutionality challenges* by U.S. District Judge Michael Baylson on July 28, 2010,[17]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-16> as the US Supreme Court had already refused to hear the same challenge in 2009. [edit<http://en.wikipedia.org/w/index.php?title=Child_Protection_and_Obscenity_Enforcement_Act&action=edit§ion=5> ]Court affirmation of 2257 and 2257A After the July 2010 decision by U.S. District Judge Michael Baylson to dismiss the FSC’s lawsuit per the request of US Attorney Eric Holder's DOJ, agreeing that USC 2257 and 2257A regulations are constitutional,[18]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-17> the FSC then filed an additional appeal to amend their original challenge to the constitutionality challenge.[19]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-18> ON Monday, September 20, 2010, Judge Baylson rejected FSC's amended appeal, allowing the government record-keeping inspections to be restarted.[20]<http://en.wikipedia.org/wiki/18_USC_2257#cite_note-19> ] The FSC stated that they would appeal the case to the Third Circuit of Appeals if needed. ---o0o--- Also, remember that this is a Wikipedia article. We'd be better off looking at the cited sources. Nathan said, "That can be true, but there are 13 circuits and a decision in one has force only within its own jurisdiction. In any case, it's clear that Wikimedia is not held to these rules, but that's rather beside the point. We should *want* this information, whether we are required to have it or not." Please understand that there is a difference between what the Wikimedia Foundation is held to, and what contributors are held to. Editors are not the Foundation, unless they are employees. To give two examples which will hopefully make this clear: 1. If Joe Smith uploads child pornography on Facebook, Facebook and individual Facebook employees are in the clear. They do not need age and consent records to host this material on their servers. They are protected by Section 230(c). But John Smith goes to jail. 2. If Joe Smith posts defamatory statements in Jack Smith's Wikipedia biography, the Wikimedia Foundation is not legally liable for defamation. Joe Smith, however, is and can be sued. It's, potentially at least, exactly the same with 2257 record-keeping requirements. Of course I agree with Nathan's main point: the Wikimedia Foundation should not accept sexually explicit material without the uploader providing a copy of the required documentation. It's the professional, best-practice thing to do. Not least to protect its volunteers and third-party reusers from potential legal liability. And if anonymous uploads dry up, then support a photography project with professional porn performers to create high-quality media for sex education: media with proper lighting, and with the proper records, made available to all reusers. The Foundation took $20m last year, ten times as much as just a few years ago. There should be money for a grant for such a project. >From that point onwards, anonymous uploads of revenge porn or people wanking in their bathrooms can just be deleted on sight.
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