2257. Four little numbers that may have a big impact on how many figures you can claim to have earned in your adult business this year. Adult webmasters are either rising up to take action, or rushing to take down their free porn sites. Could this spell the end of free porn galleries on the internet?
In summary, the new rules are obviously designed to make doing business in the adult entertainment industry next to impossible. (Are we surprised, coming out of this administration?). For example, one interpretation of the new rules requires webmasters to put a four paragraph citation that all models are over 18 and have identification documents on file, including the date of first publication and republication of the content for anything published since July of last year! Oh, and the new regs may indicate that any image designed to elicit sexual response from the viewer would trigger 18 u.s.c 2257 requirements. Can you imagine non-adult ads without images designed to elicit sexual response? How would they sell cars or deodorant?
If you are confused or concerned about the 2257 legal for website changes that were just proposed, you may benefit from reading my notes from the Xbiz Summer Forum. This was a major adult industry event where attorneys explained the best practices to avoid trouble under the new proposed regs. The review and public comment process has just begun. Comments are being taken by Congress until Sept. 10 and the panel encouraged anyone adversely affected to speak up, noting that no-one who did during the last round was harassed or adversely affected in any way. However, these rules are impossible to follow and we in the adult biz will be adversely affected if we don’t speak up. Visit the Free Speech Coalition’s page on 2257
The proposed rules were released while we were gathering in Las Vegas for the annual adult webmaster conference, just hours before the panel. These attorneys included Reed Lee, JD Obenberger & Associates; Gregory Piccionelli, Piccionelli & Sarno; Lawrence Walters, Weston, Garrou, DeWitt & Walters; Rob Apgood, Attorney. Within the next two weeks we should have access to the video from the panel session for their review.
Disclaimer: I am not an attorney and these are my personal notes, not a legal opinion nor a statement from my employer. They should be taken as personal views, and anyone facing liability under relevant statutes should consult an attorney about this. I may have misunderstood or mis-recorded their opinions, but I felt pretty good about my understanding of what they were saying.
1) secondary content producers are not relieved of the duty for record-keeping. Until now, there was widespread ambiguity about the requirements for this class but the new regs clearly use the term secondary content producers to address the fact that their previous regs did not reach a substantial portion of the people they sought to regulate.
2) Secondary content producers are defined as anyone who did not record the images but aer doing anything with it such as selling, scanning box cover, putting image on a website
3) If proposed regs are finalized as currently written the requirements made will be retroactive to July 27 2006
4) Recommended course of action for secondary content producers between now and when the regs are finalized:
a. contractually assure that all primary content producers (sources of the content we sell) have the required records on file
b. as of the effective date of the contract the primary producers certify that they are capable of providing the docs if requested by us, and that they will provide such records in a timely manner if requested.
c. DO NOT actually obtain the records yourself if you are a secondary producer for maximum protection because it could open you up to more liability than it protects you from (pending litigation regarding privacy laws and likelihood that some, but not all, records would end up being collected were both discussed as possible reasons).
5) Labeling (applies to primary and secondary content producers):
a. full compliance statement now mandatory on every page of site
b. must include in the label the date of original publication and the date of republication
c. cannot simply link to a page with the full 2257 label, must include full label on all pages of site, even if it is a page with only an enlargement of a thumbnail which resides on a page with the full label
Primary Content Producers must keep a full list of all URLs that they own, where the content they produce is republished, not a list of all URLs where the content is republished.
Regarding what images are considered pornographic, the previous legal interpretation was that images that met criteria such as lascivious display of genitals or pubic area, but the new regs included statement that any image designed to elicit sexual response from the viewer would also trigger 2257. The panelists pointed out that this could be interpreted to include any full nude images.
Please leave a comment if you have anything to contribute. There is not much info published yet on the new changes, so I will approve any comment that ads to this discussion, no matter your stance. Debate is healthy. What do you think….will the new 2257 spell the end of free porn?
