subject:"\[Foundation\-l\] Legal requirements for sexual content \-\- help, please\!"

wjhon...@aol.com wrote:
  The foundation does not own and operate the site in the way that Fox news 
 owns and operates their site.
 The foundation merely ensures that the site operates, functions, runs.
 It does not edit the contents of the site.  That is the fundamental flaw in 
 this argument.
 I really doubt that we are promoting the Foundation.  I think we are 
 promoting (if anything) the contents of the site, which contents are 
 created, edited, loaded by the community.  It is the uploader who is 
 responsible for any legal issue regarding what they have uploaded.  Not the 
 foundation.
 
 That is how the Wikimedia sites differ from a typical site.
 In the same way, Facebook is not legally responsible for some member uploaded 
 nude pictures of their ex-boyfriend to their page.
 The user doing the uploading is responsible.
 

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.


http://www.theregister.co.uk/2009/11/26/google_italy_trial
http://www.theregister.co.uk/2010/05/18/limewire_copyright_ruling
http://www.theregister.co.uk/2010/04/08/user_comments_ruling


the days of the internet being a free for all are coming to an end. If 
websites won't take responsibility, at least to the extent of having a 
policies in place which are enforced, then others will make it for them, 
  by disabling access to the site.

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

wjhon...@aol.com wrote:
 Your over-broad reading of this law would effectively gut that other
 law which states that a host company is not responsible for what
 people are hosting.
 
 Wouldn't it?  Unless you're going to support what appears to be an
 unsupportable platform that child porn (or whatever you want to
 call it) is somehow different from any other type of content such as
 snuff films or instructions on how to build a fertilizer bomb or
 detailed plans for the assassination a leading figure.
 

The question is whether the courts take a narrow reading of the 
safe-harbor exemptions, which is what they are increasing tending to do 
in other areas, such as copyright.

The main issue is whether the courts decide that the Foundation is 
equivalent to godaddy and wordpress, or whether it is more like 
Huffington Post.


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

2010-05-22 Thread Mike Godwin

wiki-l...@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.

Limewire is a contributory-infringement case that has nothing to do with
publisher liability. (Limewire distributed software.)

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.

But don't take my word for it -- read the links yourself!



 http://www.theregister.co.uk/2009/11/26/google_italy_trial
 http://www.theregister.co.uk/2010/05/18/limewire_copyright_ruling
 http://www.theregister.co.uk/2010/04/08/user_comments_ruling


I wouldn't endorse wiki-list's unusual interpretation of the cases, as
summed up here:


 the days of the internet being a free for all are coming to an end. If
 websites won't take responsibility, at least to the extent of having a
 policies in place which are enforced, then others will make it for them,
  by disabling access to the site.


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.


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

Mike Godwin wrote:
 wiki-l...@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.
 
 Limewire is a contributory-infringement case that has nothing to do with
 publisher liability. (Limewire distributed software.)
 

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.


 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. It is not godaddy, 
it is not wordpress, it is not even YouTube.



 But don't take my word for it -- read the links yourself!
 

 http://www.theregister.co.uk/2009/11/26/google_italy_trial
 http://www.theregister.co.uk/2010/05/18/limewire_copyright_ruling
 http://www.theregister.co.uk/2010/04/08/user_comments_ruling


 I wouldn't endorse wiki-list's unusual interpretation of the cases, as
 summed up here:
 
 
 the days of the internet being a free for all are coming to an end. If
 websites won't take responsibility, at least to the extent of having a
 policies in place which are enforced, then others will make it for them,
  by disabling access to the site.

 
 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?


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

2010-05-22 Thread WJhonson

In a message dated 5/22/2010 11:41:53 AM Pacific Daylight Time, 
wiki-l...@phizz.demon.co.uk writes:


 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. It is not godaddy, 
 it is not wordpress, it is not even YouTube.

*Any* user has the ability to delete content.
Is any user now the foundation ?
That's not an effective argument for the responsibility lying at the top, 
in fact you've just made the complete opposite argument.
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Re: [Foundation-l] Legal requirements for sexual content -- help, please!

wjhon...@aol.com wrote:
 In a message dated 5/22/2010 11:41:53 AM Pacific Daylight Time, 
 wiki-l...@phizz.demon.co.uk writes:
 
 
 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. It is not godaddy, 
 it is not wordpress, it is not even YouTube.
 
 *Any* user has the ability to delete content.
 Is any user now the foundation ?
 That's not an effective argument for the responsibility lying at the top, 
 in fact you've just made the complete opposite argument.


So one can go in and delete all the images from wikimedia with impunity,
and as they are reuploaded, one can go back in and delete them again,
and again, and again, and again. Or are there mechanisms in place to
stop that from happening?




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

2010-05-22 Thread Jussi-Ville Heiskanen

wiki-l...@phizz.demon.co.uk wrote:
 Mike Godwin wrote:
   
 wiki-l...@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.

 Limewire is a contributory-infringement case that has nothing to do with
 publisher liability. (Limewire distributed software.)

 

 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.
   
I doubt you can actually tie together in a reasonable fashion
the reading of US congress passed laws and what passes for
juridifical sillyness internationally (and the US has no cause
to smirk in this respect!!) I have previously thought the
idea of moving the servers out from the US as just a
joke, on the grounds that the US courts don't as a rule
tend to swerve towards slapstick-comedy in applying laws.


   
 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. It is not godaddy, 
 it is not wordpress, it is not even YouTube.


   
Again, this argument fails the laugh test. Sure there might
in a completely perversely constructed universe be a totally
idiotic argument that every editor of wikipedia is in some
-- complete failure of parody here -- sense employed by
the foundation, because they are so richly rewarded for their
labours.


Yours,

Jussi-Ville Heiskanen


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

2010-05-21 Thread wiki-list

David Goodman wrote:
 all of these problems are with other people than us.  Our copyright
 license permits commercial use, and does not apply to any potential
 problems other than copyright.  This has nothing to do with our
 licensing.  The reason nobody has answered this before is that it is
 irrelevant
 
 The responsibility for following the law in uploads is with the
 uploaders.  It would however be good to alert them to the potential
 problem.
 

That in essence is the problem. A whole bunch of people promote 
something called Wikimedia Foundation which says it owns and operates a 
number of sites.

http://www.wikimedia.org/

and when anything controversial happens, whenever any one comes 
knocking, everyone runs for a bolt hole, or looks shifty and muttering 
we got nuffin to do with it.

Its a tactic that allows Faux News to cast the Foundation as 
irresponsible jerks.

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

2010-05-21 Thread Stillwater Rising

On Fri, May 21, 2010 at 5:54 PM, wjhon...@aol.com wrote:

The foundation does not own and operate the site in the way that Fox
news owns and operates their site.
The foundation merely ensures that the site operates, functions, runs.
It does not edit the contents of the site. That is the fundamental flaw in
this argument.
I really doubt that we are promoting the Foundation. I think we are
promoting (if anything) the contents of the site, which contents are
created, edited, loaded by the community. It is the uploader who is
responsible for any legal issue regarding what they have uploaded. Not the
foundation.

That is how the Wikimedia sites differ from a typical site.
In the same way, Facebook is not legally responsible for some member
uploaded nude pictures of their ex-boyfriend to their page.
The user doing the uploading is responsible.

Actually, it's not only the uploaders that have 18 USC 2257(A) record
keeping requirements, *anybody* who inserts on a computer site or service a
digital image of, or otherwise manages the sexually explicit content of a
computer site or service that contains a visual depiction of, an actual
human being engaged in actual or simulated sexually explicit conduct
*or *produces,
assembles, manufactures, publishes, duplicates, reproduces, or reissues a
book,
magazine, periodical, film, videotape, or digitally- or computer-manipulated
image, picture, or other matter intended for commercial
distribution becomes a secondary
producerhttp://en.wikipedia.org/wiki/Child_Protection_and_Obscenity_Enforcement_Act
and is subject to 18 USC 2257(A) record keeping
requirements.[1]http://www.justice.gov/criminal/optf/guide/2257compliance-guide-revised.pdf

Violations of 2257 are punishable by up to five years in federal prison for
a first offense and ten years for subsequent offenses. Violations of 2257A
are punishable by up to one year in federal
prison.[2]http://ilt.eff.org/index.php/2257_Reporting_Requirements

Hosting these images without 18 USC 2257(A) records, in my opinion, is a *
no-win* situation for everyone involved.
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Re: [Foundation-l] Legal requirements for sexual content -- help, please!

2010-05-21 Thread wjhonson


 Your over-broad reading of this law would effectively gut
 that other law which states that a host company is not responsible for what 
people are hosting.

Wouldn't it?  Unless you're going to support what appears to be an 
unsupportable platform that child porn (or whatever you want to call it) is 
somehow different from any other type of content such as snuff films or 
instructions on how to build a fertilizer bomb or detailed plans for the 
assassination a leading figure.

 

 Surely you can see that the obvious way these two laws would fit together is 
that a hosting company is not a producer, assembler, manufacturer, etc etc etc. 
 Hosting companies enjoy the broadest exemption from any law targeting 
publishers.

To me, that's the obvious just position.


 

 

-Original Message-
From: Stillwater Rising stillwateris...@gmail.com
To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org
Sent: Fri, May 21, 2010 4:50 pm
Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, 
please!


On Fri, May 21, 2010 at 5:54 PM, wjhon...@aol.com wrote:


  The foundation does not own and operate the site in the way that Fox
 news owns and operates their site.
 The foundation merely ensures that the site operates, functions, runs.
 It does not edit the contents of the site.  That is the fundamental flaw in
 this argument.
 I really doubt that we are promoting the Foundation.  I think we are
 promoting (if anything) the contents of the site, which contents are
 created, edited, loaded by the community.  It is the uploader who is
 responsible for any legal issue regarding what they have uploaded.  Not the
 foundation.

 That is how the Wikimedia sites differ from a typical site.
 In the same way, Facebook is not legally responsible for some member
 uploaded nude pictures of their ex-boyfriend to their page.
 The user doing the uploading is responsible.


Actually, it's not only the uploaders that have 18 USC 2257(A) record
keeping requirements, *anybody* who inserts on a computer site or service a
digital image of, or otherwise manages the sexually explicit content of a
computer site or service that contains a visual depiction of, an actual
human being engaged in actual or simulated sexually explicit conduct
*or *produces,
assembles, manufactures, publishes, duplicates, reproduces, or reissues a
book,
magazine, periodical, film, videotape, or digitally- or computer-manipulated
image, picture, or other matter intended for commercial
distribution becomes a secondary
producerhttp://en.wikipedia.org/wiki/Child_Protection_and_Obscenity_Enforcement_Act
and is subject to 18 USC 2257(A) record keeping
requirements.[1]http://www.justice.gov/criminal/optf/guide/2257compliance-guide-revised.pdf

Violations of 2257 are punishable by up to five years in federal prison for
a first offense and ten years for subsequent offenses. Violations of 2257A
are punishable by up to one year in federal
prison.[2]http://ilt.eff.org/index.php/2257_Reporting_Requirements

Hosting these images without 18 USC 2257(A) records, in my opinion, is a *
no-win* situation for everyone involved.
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Re: [Foundation-l] Legal requirements for sexual content -- help, please!

2010-05-21 Thread Mike Godwin

Stillwater Rising writes:

Hosting these images without 18 USC 2257(A) records, in my opinion, is a *
 no-win* situation for everyone involved.


This raises the obvious question of how you interpret 18  USC 2257A(g),
which refers back to 18 USC 2257(h) (including in particular 18 USC
2257(h)(2)(B)). I'll be interested in hearing your thoughts about the
interaction and interpretation of these related statutes (as well as of the
interaction between 18 USC 2257(h) generally and 47 USC 230 and 231,
referenced within section 2257.


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

2010-05-21 Thread Still Waterising

I was just about to post that same section.
 From 2257(h)(2)(B)) exception to record keeping:
(v) the transmission, storage, retrieval, hosting, formatting, or  
translation (or any combination thereof) of a communication, without  
selection or alteration of the content of the communication, except  
that deletion of a particular communication or material made by  
another person in a manner consistent with section 230(c) of the  
Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute  
such selection or alteration of the content of the communication;

What I would define as communication is the image page created by  
the logged in user. That user created to page, selected and uploaded  
(inserted) the image onto Wikimedia's servers. That person could be  
viewed as a primary (if own image) or secondary (if transferred image)  
producer. These individuals need to follow 18 USC 2257 record keeping  
guidelines.

 From there, volunteers (like myself) tag, categorize the page, and  
start Deletion Requests (likely acceptacle under the Good Samaritan  
clauses of (47 U.S.C. 230 (c)).

However, when that image is selected for reuse (and not in an  
automated way, but by an actual human) on an article page, user page,  
or off-wiki that person also becomes a secondary producer.

2257B(g) simply refers to 2257(h) above, so I'm not sure why Mike even  
mentioned it.

(g) As used in this section, the terms “produces” and  
“performer” have the same meaning as in section 2257 (h) of this  
title.

On May 21, 2010, at 9:13 PM, Mike Godwin mnemo...@gmail.com wrote:

 Stillwater Rising writes:

 Hosting these images without 18 USC 2257(A) records, in my opinion,  
 is a *
 no-win* situation for everyone involved.


 This raises the obvious question of how you interpret 18  USC 2257A 
 (g),
 which refers back to 18 USC 2257(h) (including in particular 18 USC
 2257(h)(2)(B)). I'll be interested in hearing your thoughts about the
 interaction and interpretation of these related statutes (as well as  
 of the
 interaction between 18 USC 2257(h) generally and 47 USC 230 and 231,
 referenced within section 2257.


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

2010-05-20 Thread wjhonson


 
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 selection or alteration
 of
  the communication however). He thinks we should find a way to make sure
  that uploaders (who are primary producers if own work or secondary
  producers if somebody else's) should be keeping records and there are
  several ways to do this. We also need to report any suspected illegal
 images
  to the proper authorities.
 
  Since Drew runs a contract record keeping service, he said he would be
  willing to work out a deal with the Board of Trustees to modify his
 website
  so individual users can log in and upload records while OTRS maintains
  administrative rights to verify the records exist

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

2010-05-20 Thread Still Waterising

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

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

2010-05-20 Thread me


wjhon...@aol.com hett schreven:

 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.

I am not a US citizen and I do not know US laws. But if law requires  
record keeping for explicit content so that it is possible to verify  
that the content is legal, it's meaningful that re-users also keep the  
name and contact info of the person who keeps the initial USC 2257  
records. That way the content stays traceable. So I agree with what  
Stillwater Rising said:

 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.

Marcus Buck
User:Slomox



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

2010-05-20 Thread Stillwater Rising

There's been many legal opinions presented in this forum, but the one that
really matters is that of the Office of the Attorney General. I would
suggest that Mike Godwin contact Assistant Attorney General Lanny A. Breuer
(ask...@usdoj.gov ask...@usdoj.gov?subject=usdoj%20comments or (202)
514-2000) and report back to the Foundation as to what his recommendations
are.

*Legal Resources:*
DOJ 2257 Compliance Guide:
http://www.justice.gov/criminal/optf/guide/2257-compliance-guide.html
National Obscenity Law Center: http://www.moralityinmedia.org/nolc/index.htm
Florida obscenity  law:
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-2000-Ch0847-Section%200135.htmhttp://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-%3E2000-%3ECh0847-%3ESection%200135.htm


On Thu, May 20, 2010 at 1:41 PM, m...@marcusbuck.org wrote:


 wjhon...@aol.com hett schreven:

  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.

 I am not a US citizen and I do not know US laws. But if law requires
 record keeping for explicit content so that it is possible to verify
 that the content is legal, it's meaningful that re-users also keep the
 name and contact info of the person who keeps the initial USC 2257
 records. That way the content stays traceable. So I agree with what
 Stillwater Rising said:

  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.

 Marcus Buck
 User:Slomox



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

2010-05-20 Thread Gerard Meijssen

Hoi,
I have largely turned off on this subject. It has hardly a relation to what
I consider as relevant. Asking the Assistant Attorney General to me will
bring us just another opinion with recommendations. In practical terms less
relevant then Commons being blocked by the Iranians because we are good at
ignoring opinions and recommendations.

I would love to know if we have any clue on how and why this block came
about. I would love to know if there is a way that would regain us access to
Commons for the Iranian students.

On a different subject I think we all agree that Mr Sanger would earn
himself a permanent ban if he were one of our own. His trolling and the
trolling by that media conglomerate have proven effective. It is sad that
when Private Musings exhorted us on the same subject, he was not given the
same attention. When the board was considering measures at that time, it
would have been nice if he was told that it was under considerations and
would take some time. Now he looks like a martyr of this cause and sadly so
given what recently transpired.
Thanks,
GerardM

On 20 May 2010 22:11, Stillwater Rising stillwateris...@gmail.com wrote:

There's been many legal opinions presented in this forum, but the one that
really matters is that of the Office of the Attorney General. I would
suggest that Mike Godwin contact Assistant Attorney General Lanny A. Breuer
(ask...@usdoj.gov ask...@usdoj.gov?subject=usdoj%20comments or (202)
514-2000) and report back to the Foundation as to what his recommendations
are.

*Legal Resources:*
DOJ 2257 Compliance Guide:
http://www.justice.gov/criminal/optf/guide/2257-compliance-guide.html
National Obscenity Law Center:
http://www.moralityinmedia.org/nolc/index.htm
Florida obscenity law:

http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-
2000-Ch0847-Section%200135.htm
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-%3E2000-%3ECh0847-%3ESection%200135.htm

On Thu, May 20, 2010 at 1:41 PM, m...@marcusbuck.org wrote:

wjhon...@aol.com hett schreven:

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.

I am not a US citizen and I do not know US laws. But if law requires
record keeping for explicit content so that it is possible to verify
that the content is legal, it's meaningful that re-users also keep the
name and contact info of the person who keeps the initial USC 2257
records. That way the content stays traceable. So I agree with what
Stillwater Rising said:

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.

Marcus Buck
User:Slomox

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

2010-05-20 Thread Mark Wagner

On Thu, May 20, 2010 at 11:33, Still Waterising
stillwateris...@gmail.com wrote:
 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.

You're misunderstanding the word operators here.  The only people
who matter for the selection or alteration of the communication are
the Wikimedia Foundation: the board members and the foundation
employees.  Everyone else, no matter what on-site title they have, is
simply a user of the site.

-- 
Mark
[[User:Carnildo]]

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

2010-05-20 Thread Andreas Kolbe

Sounds like a good idea. It would put drafting the Sexual Content policy on a 
more solid footing, and maybe avoid problems later on.

Andreas

--- On Thu, 20/5/10, Stillwater Rising stillwateris...@gmail.com wrote:

 From: Stillwater Rising stillwateris...@gmail.com
 Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, 
 please!
 To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org
 Date: Thursday, 20 May, 2010, 21:11
 There's been many legal opinions
 presented in this forum, but the one that
 really matters is that of the Office of the Attorney
 General. I would
 suggest that Mike Godwin contact Assistant Attorney General
 Lanny A. Breuer
 (ask...@usdoj.gov
 ask...@usdoj.gov?subject=usdoj%20comments
 or (202)
 514-2000) and report back to the Foundation as to what his
 recommendations
 are.

 *Legal Resources:*
 DOJ 2257 Compliance Guide:
 http://www.justice.gov/criminal/optf/guide/2257-compliance-guide.html
 National Obscenity Law Center: http://www.moralityinmedia.org/nolc/index.htm
 Florida obscenity  law:
 http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-2000-Ch0847-Section%200135.htmhttp://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_StatuteSearch_String=URL=Ch0847/SEC0135.HTMTitle=-%3E2000-%3ECh0847-%3ESection%200135.htm

 On Thu, May 20, 2010 at 1:41 PM, m...@marcusbuck.org
 wrote:

  wjhon...@aol.com
 hett schreven:

   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.

  I am not a US citizen and I do not know US laws. But
 if law requires
  record keeping for explicit content so that it is
 possible to verify
  that the content is legal, it's meaningful that
 re-users also keep the
  name and contact info of the person who keeps the
 initial USC 2257
  records. That way the content stays traceable. So I
 agree with what
  Stillwater Rising said:

   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.

  Marcus Buck
  User:Slomox

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

2010-05-20 Thread Andreas Kolbe

I guess people the world over know that at least one member of the board has 
been quite active in the selection process of late. ;)

Also, in cases of illegal content, the Foundation may well find -- or have 
found -- itself in a position to direct that material be deleted, thus playing 
an active role in the selection of what material to present. And the Board has 
released statements on policy in this regard.

Andreas

--- On Thu, 20/5/10, Mark Wagner carni...@gmail.com wrote:

 From: Mark Wagner carni...@gmail.com
 Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, 
 please!
 To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org
 Date: Thursday, 20 May, 2010, 21:55
 On Thu, May 20, 2010 at 11:33, Still
 Waterising
 stillwateris...@gmail.com
 wrote:
  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.
 
 You're misunderstanding the word operators here. 
 The only people
 who matter for the selection or alteration of the
 communication are
 the Wikimedia Foundation: the board members and the
 foundation
 employees.  Everyone else, no matter what on-site
 title they have, is
 simply a user of the site.
 
 -- 
 Mark
 [[User:Carnildo]]
 
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Re: [Foundation-l] Legal requirements for sexual content -- help, please!

2010-05-20 Thread Chad

On Thu, May 20, 2010 at 4:11 PM, Stillwater Rising
stillwateris...@gmail.com wrote:
 There's been many legal opinions presented in this forum, but the one that
 really matters is that of the Office of the Attorney General. I would
 suggest that Mike Godwin contact Assistant Attorney General Lanny A. Breuer
 (ask...@usdoj.gov ask...@usdoj.gov?subject=usdoj%20comments or (202)
 514-2000) and report back to the Foundation as to what his recommendations
 are.


If any records needed to be kept, I think Mike would already know. If people
needed contacting on the issue, I think he'd have done it (maybe he has, I
don't know). In any case, I think Mike knows how to do his own job. He is
the lawyer after all, and the overwhelming majority of us are not.

-Chad

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

2010-05-20 Thread Stillwater Rising


What I'm advocating for now is voluntary compliance, for the following  
reasons (and nobody has tried to address #3 yet):
It's a proven system of record keeping that verifies information like  
names of subjects, stage names, date of birth, name of photographer,  
consent (implied by completing affidavit), and the date the photos  
were taken.
The legal responsibility for the accuracy and content of 2257 records  
remains with the record holder, and personal identifying information  
of the subjects of the photos (and the legal responsibility) remain  
off-wiki.
It fulfills the licensing requirements of Creative Commons, saying  
that our images must be made available for commercial use, however  
currently our pornographic images CAN NOT be reused legally in the US  
for commercial purposes because they lack USC 2257. This falls way  
short of our free content ideals (as well as Commons:Licensing).
All primary producers (photographers) and secondary producers  
(uploaders) of pornographic images in the US must keep records, even  
if the images were uploaded to Commons by using a pseudo-anonymous  
username. For this reason, sexual content transferred from Flickr  
without 2257 information should not be accepted.

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

2010-05-20 Thread David Goodman

all of these problems are with other people than us.  Our copyright
license permits commercial use, and does not apply to any potential
problems other than copyright.  This has nothing to do with our
licensing.  The reason nobody has answered this before is that it is
irrelevant

The responsibility for following the law in uploads is with the
uploaders.  It would however be good to alert them to the potential
problem.


On Thu, May 20, 2010 at 6:55 PM, Stillwater Rising
stillwateris...@gmail.com wrote:

 What I'm advocating for now is voluntary compliance, for the following
 reasons (and nobody has tried to address #3 yet):
 It's a proven system of record keeping that verifies information like
 names of subjects, stage names, date of birth, name of photographer,
 consent (implied by completing affidavit), and the date the photos
 were taken.
 The legal responsibility for the accuracy and content of 2257 records
 remains with the record holder, and personal identifying information
 of the subjects of the photos (and the legal responsibility) remain
 off-wiki.
 It fulfills the licensing requirements of Creative Commons, saying
 that our images must be made available for commercial use, however
 currently our pornographic images CAN NOT be reused legally in the US
 for commercial purposes because they lack USC 2257. This falls way
 short of our free content ideals (as well as Commons:Licensing).
 All primary producers (photographers) and secondary producers
 (uploaders) of pornographic images in the US must keep records, even
 if the images were uploaded to Commons by using a pseudo-anonymous
 username. For this reason, sexual content transferred from Flickr
 without 2257 information should not be accepted.

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 foundation-l@lists.wikimedia.org
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-- 
David Goodman, Ph.D, M.L.S.
http://en.wikipedia.org/wiki/User_talk:DGG

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

2010-05-19 Thread Stillwater Rising

I contacted Drew Sabol; professor, attorney, and owner of a 2257
record-keeping service called 2257services.nethttp://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 selection or alteration of
the communication however). He thinks we should find a way to make sure
that uploaders (who are primary producers if own work or secondary
producers if somebody else's) should be keeping records and there are
several ways to do this. We also need to report any suspected illegal images
to the proper authorities.

Since Drew runs a contract record keeping service, he said he would be
willing to work out a deal with the Board of Trustees to modify his website
so individual users can log in and upload records while OTRS maintains
administrative rights to verify the records exist. His usual cost (after set
up fees) is $1.00 per record. His email is ad...@2257services.net and he is
willing to discuss the matter with a Board of staff member who would like to
know more.

More information:
Generic model affidavit:
https://www.2257services.net/forms/model-affidavit.html
Bloggers Legal Guide: http://www.eff.org/issues/bloggers/legal/adult

*On Adult Material*: The regulations imply that the record-keeping
requirement is restricted to commercial operations. This would seem to
exclude noncommercial or educational distribution from the regulation, and
to limit secondary publishing and reproduction to material intended for
commercial distribution. However, the DOJ has left wiggle-room, and it is
still unclear if they intend to go after noncommercial websites.



On Thu, May 13, 2010 at 8:25 PM, Nathan nawr...@gmail.com wrote:

 On Thu, May 13, 2010 at 6:26 PM, Andreas Kolbe jayen...@yahoo.com wrote:
  Jehochman has suggested that we need legal advice from the Foundation at
 
  http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content
 
  with respect to § 2257[1}, and I tend to agree with him. The relevant
 discussion is here:
 
 
 http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#The_Case_for_Using_USC_2257_on_Wikimedia_Projects
 
  Editors have stated that the record-keeping requirements of § 2257 do not
 apply to Commons. Do we have a qualified legal opinion that backs this
 assertion up?
 
  From reading § 2257, it seems it is written with commercial providers of
 sexually explicit material in mind. Commons is not a commercial provider of
 such works. On the other hand, Commons licences state that material hosted
 on Commons is good for any use, including commercial use. This makes Commons
 a potential link in a chain leading to commercial use of material uploaded
 to Commons.
 
  Note that per § 2257 (h)(2)(iii), anyone
 
  inserting on a computer site or service a digital image of, or otherwise
 managing the sexually explicit content of a computer site or service that
 contains a visual depiction of, sexually explicit conduct
 
  is liable to receive a prison sentence of up to 5 years, for a first-time
 offence, if they fail to comply with the record-keeping requirements of §
 2257.
 
  Doesn't this raise the possibility that Commons administrators might
 become personally liable if, for example, they decide to keep a sexually
 explicit image that is subsequently found to have depicted a minor?
 
  There are other aspects involved in drafting Commons:Sexual_content that
 need expert legal input, for example, which types of pornography are legal
 in the US, and which ones are not.
 
  We are all laypersons there, so please help us out.
 
  Andreas
 
 
  1 http://www.law.cornell.edu/uscode/718/usc_sec_18_2257000-.html
 

 I'm not sure the presence or absence of a legal imperative is fully
 relevant to the underlying

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

2010-05-19 Thread David Goodman

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

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 selection or alteration of
the communication however). He thinks we should find a way to make sure
that uploaders (who are primary producers if own work or secondary
producers if somebody else's) should be keeping records and there are
several ways to do this. We also need to report any suspected illegal images
to the proper authorities.

Since Drew runs a contract record keeping service, he said he would be
willing to work out a deal with the Board of Trustees to modify his website
so individual users can log in and upload records while OTRS maintains
administrative rights to verify the records exist. His usual cost (after set
up fees) is $1.00 per record. His email is ad...@2257services.net and he is
willing to discuss the matter with a Board of staff member who would like to
know more.

More information:
Generic model affidavit:
https://www.2257services.net/forms/model-affidavit.html
Bloggers Legal Guide: http://www.eff.org/issues/bloggers/legal/adult

*On Adult Material*: The regulations imply that the record-keeping
requirement is restricted to commercial operations. This would seem to
exclude noncommercial or educational distribution from the regulation, and
to limit secondary publishing and reproduction to material intended for
commercial distribution. However, the DOJ has left wiggle-room, and it is
still unclear if they intend to go after noncommercial websites.

On Thu, May 13, 2010 at 8:25 PM, Nathan nawr...@gmail.com wrote:

On Thu, May 13, 2010 at 6:26 PM, Andreas Kolbe jayen...@yahoo.com wrote:
Jehochman has suggested that we need legal advice from the Foundation at

http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content

with respect to § 2257[1}, and I tend to agree with him. The relevant
discussion is here:

http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#The_Case_for_Using_USC_2257_on_Wikimedia_Projects

Editors have stated that the record-keeping requirements of § 2257 do not
apply to Commons. Do we have a qualified legal opinion that backs this
assertion up?

From reading § 2257, it seems it is written with commercial providers of
sexually explicit material in mind. Commons is not a commercial provider of
such works. On the other hand, Commons licences state that material hosted
on Commons is good for any use, including commercial use. This makes Commons
a potential link in a chain leading to commercial use of material uploaded
to Commons.

Note that per § 2257 (h)(2)(iii), anyone

inserting on a computer site or service a digital image of, or otherwise
managing the sexually explicit content of a computer site or service that
contains a visual

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

2010-05-19 Thread Stillwater Rising

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

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 selection or alteration
of
the communication however). He thinks we should find a way to make sure
that uploaders (who are primary producers if own work or secondary
producers if somebody else's) should be keeping records and there are
several ways to do this. We also need to report any suspected illegal
images
to the proper authorities.

Since Drew runs a contract record keeping service, he said he would be
willing to work out a deal with the Board of Trustees to modify his
website
so individual users can log in and upload records while OTRS maintains
administrative rights to verify the records exist. His usual cost (after
set
up fees) is $1.00 per record. His email is ad...@2257services.net and he
is
willing to discuss the matter with a Board of staff member who would like
to
know more.

More information:
Generic model affidavit:
https://www.2257services.net/forms/model-affidavit.html
Bloggers Legal Guide: http://www.eff.org/issues/bloggers/legal/adult

*On Adult Material*: The regulations imply that the record-keeping
requirement is restricted to commercial operations. This would seem to
exclude noncommercial or educational distribution from the regulation,
and
to limit secondary publishing and reproduction to material intended for
commercial distribution.

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

2010-05-15 Thread Andreas Kolbe

Another great post.

You are right: this is a separate issue from the original censorship/content 
filtering debate, but it is an important issue that the proposed Sexual 
content policy on Commons should address.

Recapping some thoughts around this:

*No image showing an actual living person engaged in sexually explicit conduct 
should be uploaded (or kept on Commons) without that person's consent. Some 
people will definitely ''not'' be fine with a former partner or someone they 
only briefly met uploading images of a sexual encounter. If done without 
consent, this is analogous to a BLP violation (Do no harm). 

*Some sexually explicit images show faces, others do not. It is tempting to say 
that we should only need OTRS consent for images where a person is 
identifiable, and that consent does not matter for images where people's 
genitals are shown from behind, in close-up, or their face is out of shot. 

*However, there are obvious risks in yielding to that temptation. A person 
whose image was uploaded without their consent will still be harmed if the 
uploader tells everyone, Look, I uploaded an image of so-and-so's genitals, 
and this is the URL.

*Some people may be fine with, or enjoy, having a picture of their genitals 
uploaded, or a picture of them engaged in sexually explicit conduct, but they 
may at the same time be reluctant to mail OTRS with their real-life name and 
e-mail address saying, The person demonstrating oral sex in that picture is 
me, and I am fine with that picture being on Commons. 

*So by requiring people to mail their consent to OTRS, we may be reducing the 
number of valuable sexually explicit images we get, as well as reducing 
potential harm.

*It is impossible to verify that the person sending the OTRS mail is actually 
the person shown in the picture. It is apparently not unheard of for people to 
have lied because they wanted an image to remain on Commons.

*All of this is much less of a problem with professional porn actors. We have 
some professionals who contribute their images to Commons, and I am beginning 
to think this is something to be encouraged. 

*Obviously, such material needs vetting for educational value (to avoid Commons 
being used for self-promotion), but many of the above problems disappear with 
professionals -- professionals in this field are by definition fine with images 
of themselves engaged in sexually explicit conduct being publicly available, 
and are also used to complying with all the relevant record keeping 
requirements. I've even wondered if we should do an outreach to the industry. 

*This does not just apply to sexually explicit images. It also applies to 
nudity.

If you have further ideas or input, the topic is currently being discussed here:

http://commons.wikimedia.org/wiki/Commons_talk:Sexual_content#Consent_clarification

Andreas

--- On Fri, 14/5/10, David Goodman dgoodma...@gmail.com wrote:

 From: David Goodman dgoodma...@gmail.com
 Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, 
 please!
 To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org
 Date: Friday, 14 May, 2010, 18:43
 The right to privacy is based 
 explicitly on respecting cultural
 taboos of individuals. Ordinary identifiable people should
 not be
 shown in public doing things they reasonably would not like
 to be seen
 doing, except  when the public need for information is
 great enough to
 overcome this. In WP terms, this is the BLP principle of
 do no harm
 and it applies as much to images as it does to articles.
 
 There are people to whom this does not apply at all, such
 as public
 figures when the matter is relevant to their notability or
 otherwise
 the proper focus of responsible news coverage, and even
 private
 individuals when the matter is sufficiently important--and
 this is the
 same for images as articles, and for all WP content. 
 As with BLP, it
 applies with special force to children and others 
 incapable of giving
 consent or incapable of being aware that their conduct was
 being
 recorded.
 
 I am not a BLP-expansionist; I  interpret the need for
 information
 fairly liberally, but when that does not apply I have
 always been on
 the strict side of enforcing this with such things as
 internet memes.
 
 In practice in almost all societies, sexual behavior is
 regarded as
 more private than other things, and it is related to the
 almost
 universal taboo about the display of nude genitals in
 public in
 ordinary situations. Therefore the right to privacy does
 apply with
 special force here.
 
 I think we have an obligation to  remove or obscure
 the identities for
 nude or sexual images of living people who have not
 explicitly or
 implicitly given their consent, or who are unable to give
 it. I can
 imagine situations where the right to public information
 might
 over-ride this, but they would be exceptional. (The
 hypothetical case
 of a nude congressman in front of the Capitol was mentioned

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

2010-05-14 Thread Jussi-Ville Heiskanen

Jussi-Ville Heiskanen wrote:
 Nathan wrote:
 On Thu, May 13, 2010 at 10:14 PM, Gregory Maxwell gmaxw...@gmail.com wrote:

   
 The obligation to protect people against an invasion of their privacy
 is not limited to, or even mostly applicable to sexual images.
 Although sexual images are one of several most important cases, the
 moral imperative to respect the privacy of private individuals exists
 everywhere.

 As such, Commons has a specific policy on this:

 http://commons.wikimedia.org/wiki/Commons:Photographs_of_identifiable_people#Photographs_taken_in_a_private_place

 


 Not much of a policy, in my opinion. A general statement of principle,
 with no mechanism of enforcement, doesn't have much impact on the
 state of things. We don't require evidence of release, but we should.
 And in the case of explicit content, we should require that release
 even if the photograph is taken in a public place. Topless sunbathing
 on a beach in Nice is not the same as a worldwide license for
 unlimited publicity.

 
I may have said it before -- and I do apologize if I sound
like a record stuck into repeating the same groove again
and again -- but the issue in cases like that *decidedly*
isn't the explicitness of the image, but the _privacy_
_violation_.

It may be that here again the ugly head of my Nordic
liberal values may be rising above the parapet, but I
do not consider a female of the species enjoying the
sun without incurring tan-lines to their upper torso
as remotely explicit in any sensible sense of the
word -- any more than I would consider explicit an
image of a woman breastfeeding her one year old baby.

Though I do recognize the sentiment that people who
have very few opportunities to see womens breasts in
the flesh, might feel otherwise. I forget who it was
in relation to a campus ban on shows of affection, that
said Kissing in public in front of lonely people is like
eating a hamburger in front of people on the point of
starvation. -- or words to that effect.

So to recap, I wouldn't support a selective standard only
applied to explicit images, no matter how defined.


Yours,

Jussi-Ville Heiskanen



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

2010-05-14 Thread Andreas Kolbe

Someone uploading a nude picture of their ex-girlfriend can be far more 
injurious to the woman concerned than the same person uploading an image of her 
making tea.

Requiring an OTRS release from the model for any nude and sexually explicit 
content seems appropriate to me.

Andreas



--- On Fri, 14/5/10, Jussi-Ville Heiskanen cimonav...@gmail.com wrote:

 From: Jussi-Ville Heiskanen cimonav...@gmail.com
 Subject: Re: [Foundation-l] Legal requirements for sexual content -- help, 
 please!
 To: Wikimedia Foundation Mailing List foundation-l@lists.wikimedia.org
 Date: Friday, 14 May, 2010, 10:36
 Jussi-Ville Heiskanen wrote:
  Nathan wrote:
  On Thu, May 13, 2010 at 10:14 PM, Gregory Maxwell
 gmaxw...@gmail.com
 wrote:
 
    
  The obligation to protect people against an
 invasion of their privacy
  is not limited to, or even mostly applicable
 to sexual images.
  Although sexual images are one of several
 most important cases, the
  moral imperative to respect the privacy of
 private individuals exists
  everywhere.
 
  As such, Commons has a specific policy on
 this:
 
  http://commons.wikimedia.org/wiki/Commons:Photographs_of_identifiable_people#Photographs_taken_in_a_private_place
 
      
 
 
  Not much of a policy, in my opinion. A general
 statement of principle,
  with no mechanism of enforcement, doesn't have
 much impact on the
  state of things. We don't require evidence of
 release, but we should.
  And in the case of explicit content, we should
 require that release
  even if the photograph is taken in a public place.
 Topless sunbathing
  on a beach in Nice is not the same as a worldwide
 license for
  unlimited publicity.
 
      
 I may have said it before -- and I do apologize if I sound
 like a record stuck into repeating the same groove again
 and again -- but the issue in cases like that *decidedly*
 isn't the explicitness of the image, but the _privacy_
 _violation_.
 
 It may be that here again the ugly head of my Nordic
 liberal values may be rising above the parapet, but I
 do not consider a female of the species enjoying the
 sun without incurring tan-lines to their upper torso
 as remotely explicit in any sensible sense of the
 word -- any more than I would consider explicit an
 image of a woman breastfeeding her one year old baby.
 
 Though I do recognize the sentiment that people who
 have very few opportunities to see womens breasts in
 the flesh, might feel otherwise. I forget who it was
 in relation to a campus ban on shows of affection, that
 said Kissing in public in front of lonely people is like
 eating a hamburger in front of people on the point of
 starvation. -- or words to that effect.
 
 So to recap, I wouldn't support a selective standard only
 applied to explicit images, no matter how defined.
 
 
 Yours,
 
 Jussi-Ville Heiskanen
 
 
 
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 foundation-l@lists.wikimedia.org
 Unsubscribe: https://lists.wikimedia.org/mailman/listinfo/foundation-l
 


  

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

On Fri, May 14, 2010 at 3:56 PM, Andreas Kolbe jayen...@yahoo.com wrote:
 Someone uploading a nude picture of their ex-girlfriend can be far more 
 injurious to the woman concerned than the same person uploading an image of 
 her making tea.

 Requiring an OTRS release from the model for any nude and sexually explicit 
 content seems appropriate to me.

 Andreas


Except the case that you make a photo of yourself. In this case the
OTRS ticket is not important like is not important in the point of
view of copyright.

In any case what means injurious? It can change in relation of the
cultural point of view but also in relation of the environment where
the photo has been made (i.e. a picture taken in a nudist beach cannot
be considered injurious).

Ilario

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

2010-05-14 Thread Nathan

On Fri, May 14, 2010 at 10:17 AM, Ilario Valdelli valde...@gmail.com wrote:
 Except the case that you make a photo of yourself. In this case the
 OTRS ticket is not important like is not important in the point of
 view of copyright.

 In any case what means injurious? It can change in relation of the
 cultural point of view but also in relation of the environment where
 the photo has been made (i.e. a picture taken in a nudist beach cannot
 be considered injurious).

 Ilario

It can't be? I think you (and Jussi-Ville) have a pretty narrow
concept of what might be injurious. If you release an image of
yourself to your friends, does that mean you'd be happy to see it on
the evening news? If you're tanning on the beach, is that permission
to have your image republished in a major feature film? Your argument
addresses what you believe the photographer should be allowed to do,
but ignores the potential for negative impact on the subject of the
photograph. That's pretty unfortunate.

Surely there is a way to meet educational goals without risking the
privacy or abuse of content subjects? There is tension between
cultural values, obviously, and some self-serving interpretation of
that tension (everyone seems to think they are being pressured to
abide by the values of the misguided), but there must be some middle
ground that allows for some minimal effective protection for people
who are not party to the armchair philosophical debate.

Nathan

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

On Fri, May 14, 2010 at 4:49 PM, Nathan nawr...@gmail.com wrote:
 On Fri, May 14, 2010 at 10:17 AM, Ilario Valdelli valde...@gmail.com wrote:
 Except the case that you make a photo of yourself. In this case the
 OTRS ticket is not important like is not important in the point of
 view of copyright.

 In any case what means injurious? It can change in relation of the
 cultural point of view but also in relation of the environment where
 the photo has been made (i.e. a picture taken in a nudist beach cannot
 be considered injurious).

 Ilario

 It can't be? I think you (and Jussi-Ville) have a pretty narrow
 concept of what might be injurious. If you release an image of
 yourself to your friends, does that mean you'd be happy to see it on
 the evening news? If you're tanning on the beach, is that permission
 to have your image republished in a major feature film? Your argument
 addresses what you believe the photographer should be allowed to do,
 but ignores the potential for negative impact on the subject of the
 photograph. That's pretty unfortunate.

Please understand that one matter is the privacy, another is the
injury for publication of nudism.

We are speaking about nudism, probably the question of privacy must be
solved in another discussion.

I mean that solving the problem of nudism you don't solve the problem
of privacy *in general* but I am not saying that the privacy is not
important.


 Surely there is a way to meet educational goals without risking the
 privacy or abuse of content subjects? There is tension between
 cultural values, obviously, and some self-serving interpretation of
 that tension (everyone seems to think they are being pressured to
 abide by the values of the misguided), but there must be some middle
 ground that allows for some minimal effective protection for people
 who are not party to the armchair philosophical debate.

 Nathan


Most of all because the nudism is relative to the culture.

Ilario

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

2010-05-14 Thread Anthony

On Fri, May 14, 2010 at 9:56 AM, Andreas Kolbe jayen...@yahoo.com wrote:

 Someone uploading a nude picture of their ex-girlfriend can be far more
 injurious to the woman concerned than the same person uploading an image of
 her making tea.


It can be.  Then again, an image of her making tea might be far more
injurious.

Requiring an OTRS release from the model for any nude and sexually explicit
 content seems appropriate to me.


I agree.  But then, I can think of dozens of other situations which don't
involve nudity or sexuality but which should follow the same procedures.

Basically, if there's any reasonable chance the person would object to the
image, and the identity of the person in the image is not in itself
newsworthy/encyclopedic, we probably should require the person to give
permission.  I don't know what the law is in that situation (I thought film
productions had to get some sort of permission for filming people, even in a
public place), but it seems like the right thing to do.  Especially given
that Commons images are permitted (even encouraged) for use for commercial
purposes.

One necessary exception would be for situations in which the identity of the
person is itself newsworthy/encyclopedic.  If you snap a shot of a Mayor
accepting a bribe, the Mayor's permission is not needed.  Additionally, I
suppose an exception could be made in cases where the image is so innocuous
that no one is likely to object.
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Re: [Foundation-l] Legal requirements for sexual content -- help, please!

On Fri, May 14, 2010 at 6:59 PM, Anthony wikim...@inbox.org wrote:
 On Fri, May 14, 2010 at 9:56 AM, Andreas Kolbe jayen...@yahoo.com wrote:

 Someone uploading a nude picture of their ex-girlfriend can be far more
 injurious to the woman concerned than the same person uploading an image of
 her making tea.


 It can be.  Then again, an image of her making tea might be far more
 injurious.

 Requiring an OTRS release from the model for any nude and sexually explicit
 content seems appropriate to me.


 I agree.  But then, I can think of dozens of other situations which don't
 involve nudity or sexuality but which should follow the same procedures.

 Basically, if there's any reasonable chance the person would object to the
 image, and the identity of the person in the image is not in itself
 newsworthy/encyclopedic, we probably should require the person to give
 permission.  I don't know what the law is in that situation (I thought film
 productions had to get some sort of permission for filming people, even in a
 public place), but it seems like the right thing to do.  Especially given
 that Commons images are permitted (even encouraged) for use for commercial
 purposes.

 One necessary exception would be for situations in which the identity of the
 person is itself newsworthy/encyclopedic.  If you snap a shot of a Mayor
 accepting a bribe, the Mayor's permission is not needed.  Additionally, I
 suppose an exception could be made in cases where the image is so innocuous
 that no one is likely to object.

Perfect.

Ilario

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

Ilario Valdelli wrote:
 On Fri, May 14, 2010 at 3:56 PM, Andreas Kolbe jayen...@yahoo.com wrote:
 Someone uploading a nude picture of their ex-girlfriend can be far more 
 injurious to the woman concerned than the same person uploading an image of 
 her making tea.

 Requiring an OTRS release from the model for any nude and sexually explicit 
 content seems appropriate to me.

 Andreas

 
 Except the case that you make a photo of yourself. In this case the
 OTRS ticket is not important like is not important in the point of
 view of copyright.
 
 In any case what means injurious? It can change in relation of the
 cultural point of view but also in relation of the environment where
 the photo has been made (i.e. a picture taken in a nudist beach cannot
 be considered injurious).
 

Many nudist will tell you that what happens on the beach stays on the
beach. There is no expectation that a photo taken by a friend, or
stranger for that matter, will end up on a public website. Indeed there
have been recent case including in the US, where people who have posted
intimate photos of another has been arrested and convicted under various
privacy laws.

“It is one thing to be viewed in the nude by a person at some point in
time, but quite another to be recorded in the nude so that a recording
exists that can be saved or distributed and viewed at a later time,”
Judge Paul G. Lundsten wrote for the court.
http://www.wislawjournal.com/article.cfm?recID=72195


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

wjhon...@aol.com wrote:
 In a message dated 5/14/2010 7:50:00 AM Pacific Daylight Time, 
 nawr...@gmail.com writes:
 
 
 Surely there is a way to meet educational goals without risking the
 privacy or abuse of content subjects? 
 
 
 How is a person uploading a picture of themselves to Commons expecting any 
 privacy at all?
 

How do you ascertain the veracity of their statement?

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

David Goodman wrote:
 
 But all of this is irrelevant to the original censorship issue,
 because we are not protecting our audience, who can personally or by
 proxy protect themselves  have the responsibility for doing so; we
 are protecting our subjects, who cannot.
 

First you have to define who your audience is. It is beginning to sound
that the audience is a very small number of ideologues.



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

On 14.05.2010 20:38, wiki-l...@phizz.demon.co.uk wrote:
 Many nudist will tell you that what happens on the beach stays on the
 beach. There is no expectation that a photo taken by a friend, or
 stranger for that matter, will end up on a public website. Indeed there
 have been recent case including in the US, where people who have posted
 intimate photos of another has been arrested and convicted under various
 privacy laws.



In a big *yellow* wall if a small point is red for me and orange for 
you, this doesn't change the color of the wall.

Ilario

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