I can accept that Commons may not fit under the definition of
secondary producer. However, when Wikipedians choose a sexually
explicit image from Commons, the crop it and add a caption, this may
fall under the selection or alteration of the communication exception.
Now consider that Wilipedia publishes print versions, encourages
mirroring, as well as makes articles available as PDF files, this
seems like Wikipedia (and thereby WMF) would qualify as a secondary
producer.
On May 20, 2010, at 1:37 AM, wjhon...@aol.com wrote:
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 stillwateris...@gmail.com
To: Wikimedia Foundation Mailing List foundation-l@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
herehttp://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
dgoodma...@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
stillwateris...@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
