2010-04-12 Larry Sanger accuses Wikimedia of hosting illegal images

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Excerpt

On 7 April, Larry Sanger announced that he had reported the Wikimedia Foundation to the FBI for "knowingly distributing child pornography" (later also forwarding the message "to my senators and representatives"). In the message to the FBI as reproduced by Sanger, he introduced himself as follows:

"... My name is Dr. Larry Sanger and I am widely known as co-founder of Wikipedia, the encyclopedia project. I have long since departed the organization, over disagreements about editorial and management policy. I have also since founded a more responsible project, Citizendium.org [...]. Given my position of influence on matters related to Wikipedia, though I'm no longer associated with it, I feel I have a moral obligation to make the following report."

...

Mike Godwin, the Wikimedia Foundation's legal counsel, whose work on Internet-related free speech issues, including pornography, goes back to the early 1990s (cf. Cyber Rights), replied:

"As is commonly the case when non-lawyers attempt to invoke a statute without adequately researching the relevant law and legal categories, Sanger has confused and conflated a number of legal doctrines." listing five such points:

  • Confusing Section 1466A, "which is not a child-pornography statute but an obscenity statute" with the Section 2252A, the actual child pornography statute. (Sanger later expressed regret to have used the term "child pornography" instead of "depictions of child sexual abuse" – language closer to that of the invoked statute – acknowledging that many people would restrict the former term to photographs of real children.)
  • Ignoring the Miller test for obscenity, which involves applying "contemporary community standards"
  • Ignoring Section 230 of the Communications Decency Act which according to Godwin "expressly bars hosting providers for liability for such content" provided they, like the Wikimedia Foundation in this case, "did not originate or develop the content"
  • Returning to "community standards", Godwin stated: "There is no evidence in Sanger's message that the community has failed in its efforts to make sure that the content of Wikimedia Commons is legal, at least in the context of the law applicable to Wikimedia Foundation as a hosting provider".
  • Lastly, Godwin questioned the legality of Sanger's own posting regarding defamation. To convince the FBI of his assertion that the Foundation was "knowingly" distributing child pornography, Sanger had claimed that a Wikimedia staff member was "well known for his views in defense of pedophilia". Godwin wrote: "I think any jury might reasonably infer that Sanger's recklessness in posting his allegations, together with his clear intention to damage the reputation of an individual person, is the kind of thing that deserves compensation and ought to be deterred."

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