The Official Oprano 2257 info thread

[sarettah]

2257 resources I know about. Please add what you know about.

http://uscode.house.gov/DOWNLOAD/18C110.DOC Current 2257 wording on the House of Reps server (you got to look through it cause it is the entire chapter 110 that they have there)

http://www4.law.cornell.edu/uscode/18/2257.html Current 2257 from cornell law (easier to read)

http://www.regulations.gov/freddocs/04-13792.htm 2257 changes as published in the Federal Register

http://2257lookup.com (Brandon's site)

http://www.keepmyrecords.com (Tony's)

http://www.xxxlaw.net First Amendment and Adult Entertainment Law (look for 2257 in their table of contents)

http://www.embalaw.com Eric M. Bernstein & Associates, LLC (the guy that was on with Hammer on YNOT radio)

2257EZ.com My Site (http://www.2257ez.com)

http://www.2257lookup.com/2257Summary.html Brandons 2257 summary page

http://www.kscourts.org/ca10/cases/1998/03/96-1501.htm 10th circuit court of appeals decision in Sundance v Reno

http://www.law.emory.edu/6circuit/aug98/98a0249p.06.html Sixth Circuit Court of appeals ruling in Connections V Reno

http://cfr.law.cornell.edu/cfr/cfr.php?tit...e=part&value=75 (http://cfr.law.cornell.edu/cfr/cfr.php?title=28&type=part&value=75) CFR 28 Part 75

[sarettah]

Edited in: I tried to link to the avn article at their site, but the link was spazzing out, so if you go to http://www.avnonline.com , go to this months issues and look through the table of contents and you will find it


Ok, so I'm reading my copy of AVNonline last night and they have a short op/ed on the 2257 changes (written before the actual changes were published in the Federal Register online version is Here (http://www.avnonline.com/index.php?Primary_Navigation=Editorial&Action=View_Article&Content_ID=108532) ) and from what I am seeing, the guy who wrote it is more or less saying that webmasters won't have to keep the records (unless of course they are primary producers) and instead will only have the burden of getting their 2257 statements in the proper place and format.

This is totally different than anything I have yet seen. I have run the law past my counsel (free speech guy here in KC), I have read the stuff on XXXLaw.net, I have read the stuff that Brandon has written, I went to the YNOT radio show and listened and participated in the chat, I have visited numerous law sites and spoken to many many people. This is the first time I have seen it implied that we won't have to uhave copies of the records but instead will only be making what seems to me is a fairly minor change to business as usual.

I think the article is wrong. One of the main changes, from my point of view, being proposed is that the DOJ have clearly stated that webmasters ARE secondary producers and will be required to have the records on hand. However, the article does point out (not clearly or strongly enough) that the proposed changes fly in the face of the 1998 appeals court decision in Sundance versus Reno.

From the article:
"The regulatory changes begin with what appears to embrace the United States Court of Appeals decision in Sundance Assocs. Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). That case invalidated the component of the original regulations that required some “secondary producers” maintain copies of records, allow inspections, and so on. The new regulations include an exception that appears to conform to the Sundance case, which held that the original regulations contradicted the statute by requiring record-keeping by categories of businesses that were clearly exempted by the statute: “production” that requires record-keeping “does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.” But then “secondary producers” are an exception to the exception, which seems to entirely fly in the face of Sundance. Also now specifically exempt from record-keeping under the new regulations are ISPs. "

However, since the changes clearly add webmasters to the category of secondary producers:

"(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, a computer-generated image,
digital image, or picture, or other matter intended for commercial
distribution that contains a visual depiction of actual sexually
explicit conduct, or who inserts on a computer site or service a
digital image of, or otherwise manages the content of a computer site
or service that contains a visual depiction of, actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing."

and the changes clearly state that secondary producers as defined are NOT exempt from the record keeping requirements:

" (4) Producer does not include persons whose activities relating to
the visual depiction of actual sexually explicit conduct are limited to
the following:
(i) Photo processing;
(ii) Mere distribution;
(iii) Any activity, other than those activities identified in
paragraphs ©(1) and (2) of this section, that does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performers;"

I do not see how DeWitt can claim we are still exempt.

any thoughts ?

[RawAlex]

I thought a bunch about this over the last few weeks, and I had two very simple questions:

1 - Isn't it the job of the congress and hosue to write, amend, and modify the laws of the nation? I can understand a "clarification" of the rules, but what I see here is a wholesale revision and change to the written law that creates burdens that were not previously in place, and does so without indicating effective dates, or how far back these records must suddenly be kept.

2 - Are these amendments not in direct violation of privacy laws? I don't think that many solo models (Mike, let's use your solo girl sites as an example) would be very happy to have their full names, addresses, date of birth, and such distributed out to thousands of adult webmasters who are using the promotional content. I think that this would create a serious risk for them individually. Further, I could see where anti-porn groups could come in, sign up for a program, and download promo content, get the model releases, and use that to create a list of "porn people" to harass on a daily basis. I know many amateur models in this business that would not only leave the business but be shamed, humiliated, and potentially lose gainful employment and such as a result of such a protest on their front lawn.

I have an idea, but I am not sure that content producers and programs would be that excited:

The records stay where they are. Each time a webmaster uses and image, they are required to send written or electronic notice of the use. Exact web page, etc. For an admin fee of $X per year, the content provider becomes the primary AND secondary record holder for the company.

Now, I can see all sorts of legal issues here, but I see some good things as well, including limited use license controls, etc.

Any of the current "third party" systems are risky. There is no proof that these people will be in business one day from now, and they are under not legal pressure to maintain the records. Only the producer and the end webmaster seem to fall into the scope of the law. A third party is not obligated to keep the records - they could go out of business at any time without any downside to themselves, just to you and your business.

It's a shaky time.

Alex

[sarettah]

Just a quicky to clarify.

The record keeping requirements do not require the performers address, only name and date of birth.

[OldJeff]

Third party records will be useless when the proposed changes go into effect. (except for gathering the information for yourself)

I am not looking to dump on anyones business plans, but the provision requires the records to be maintained by someone directly connected to the websites.

[SykkBoy]

I wonder what will happen to google, altavista, etc. with the image searches...
it would almost seem they are secondary producers by publishing a pic and without 2257 docs. I'm sure they would fall under a different classification, but this could muddy things even further...

[RawAlex]

Originally posted by sarettah@Aug 4 2004, 01:21 PM
Just a quicky to clarify.

The record keeping requirements do not require the performers address, only name and date of birth.
Record keeping requires name, date of birth, and ID... the ID has the address on it.

Name and date of birth is enough to clone an ID, and it is more than enough for someone to track down a model. The risk level is INSANE.

Alex

[sarettah]

Originally posted by RawAlex+Aug 4 2004, 02:47 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (RawAlex @ Aug 4 2004, 02:47 PM)</td></tr><tr><td id='QUOTE'> <!--QuoteBegin-sarettah@Aug 4 2004, 01:21 PM
Just a quicky to clarify.

The record keeping requirements do not require the performers address, only name and date of birth.
Record keeping requires name, date of birth, and ID... the ID has the address on it.

Name and date of birth is enough to clone an ID, and it is more than enough for someone to track down a model. The risk level is INSANE.

Alex [/b][/quote]
Yeah, but Alex. That requirement is already there and most of the content providers I have dealt with provide that to me. Some of them have the address redacted but in most content purchases I've made, the picture of the model with the id has been there and the picture of the model with a release has been there.
That information does not have to be publically displayed, it needs to be available during an inspection.

[Peaches]

Originally posted by sarettah+Aug 4 2004, 03:53 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (sarettah @ Aug 4 2004, 03:53 PM)</td></tr><tr><td id='QUOTE'> Originally posted by RawAlex@Aug 4 2004, 02:47 PM
<!--QuoteBegin-sarettah@Aug 4 2004, 01:21 PM
Just a quicky to clarify.

The record keeping requirements do not require the performers address, only name and date of birth.
Record keeping requires name, date of birth, and ID... the ID has the address on it.

Name and date of birth is enough to clone an ID, and it is more than enough for someone to track down a model. The risk level is INSANE.

Alex
Yeah, but Alex. That requirement is already there and most of the content providers I have dealt with provide that to me. Some of them have the address redacted but in most content purchases I've made, the picture of the model with the id has been there and the picture of the model with a release has been there.
That information does not have to be publically displayed, it needs to be available during an inspection. [/b][/quote]
If I understand it correctly, now whomever uses the pictures in any way (tgp site, to make banners, etc) has to have the info in THIER files. i.e. before I could send the feds to whomever I bought the content from, but now I would have to have the actual records also which would include a copy of the id from the model which will have her address.

Ergo, if I'm Joe Stalker, I can pay $X for "content" and even say I'm an adult webmaster and get the full records on the model(s) of my choice.

[sarettah]

Originally posted by Peaches@Aug 4 2004, 04:42 PM
If I understand it correctly, now whomever uses the pictures in any way (tgp site, to make banners, etc) has to have the info in THIER files. i.e. before I could send the feds to whomever I bought the content from, but now I would have to have the actual records also which would include a copy of the id from the model which will have her address.

Ergo, if I'm Joe Stalker, I can pay $X for "content" and even say I'm an adult webmaster and get the full records on the model(s) of my choice.
That is the way it is being read and with most of the content providers I deal with I get that info now even though I am just joe webmaster (or sarettah webmaster as the case may be) :)

[*KK*]

If a company goes out of business they are still required to keep the records for 5 years, otherwise they are liable for the jail time if they get busted.

Making sure the people that buy your content give you the urls where they are using the images (and video - if you're not taking the easy road and DRM'ing the vids prior to delivery) should help keep the Joe Stalkers to a minimum... for instance if you want to buy movie content from us, then you've got to provide me with a legitimate site that I can look at and approve before I will let you shop with me, and then when I come back to check for my content on your urls that you've given me for images (since my videos are DRM'd prior to sale) that you are using my content there.

There's nothing in the law that says you have to leave anything but the image, name and birthdate on the id. I realize that yes, people can find you that way, but they can find you many other ways, just by having a stage name...

No system is perfect, but I certainly don't want to be the one testing it in a criminal setting.

[gonzo]

Sare....

Im going to copy this down and snaz it up for a perm place on Oprano Plus. Im sure people will be looking for it after the thread scrolls off.

[FightThePatent]

After going through all the million 2257 threads, reading the many mispresentations and misunderstandings on 2257, and doing alot of talking with legal folk, I have compiled a summary that touches upon a number of issues.

You can read the 2257 summary at:
http://www.2257lookup.com/2257Summary.html


Hope it helps,
brandon

[sarettah]

Originally posted by FightThePatent@Aug 4 2004, 08:59 PM
After going through all the million 2257 threads, reading the many mispresentations and misunderstandings on 2257, and doing alot of talking with legal folk, I have compiled a summary that touches upon a number of issues.

You can read the 2257 summary at:
http://www.2257lookup.com/2257Summary.html


Hope it helps,
brandon
Thanx Brandon, I added it to the top message.

Gonzo, cool, thanx.....

(I've been pinned...I've never been pinned before... Does this mean we're going steady now ? :rolleyes: )

[Dravyk]

Originally posted by sarettah@Aug 4 2004, 01:50 PM
Ok, so I'm reading my copy of AVNonline last night and they have a short op/ed on the 2257 changes (written before the actual changes were published in the Federal Register online version is Here (http://www.avnonline.com/index.php?Primary_Navigation=Editorial&Action=View_Article&Content_ID=108532) ) and from what I am seeing, the guy who wrote it is more or less saying that webmasters won't have to keep the records (unless of course they are primary producers) and instead will only have the burden of getting their 2257 statements in the proper place and format.

This is totally different than anything I have yet seen.
Being a printed publication, AVN has a long lag time of one to three months. That editorial PREdates the announcement.

[sarettah]

Originally posted by Dravyk+Aug 4 2004, 11:22 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (Dravyk @ Aug 4 2004, 11:22 PM)</td></tr><tr><td id='QUOTE'> <!--QuoteBegin-sarettah@Aug 4 2004, 01:50 PM
Ok, so I'm reading my copy of AVNonline last night and they have a short op/ed on the 2257 changes (written before the actual changes were published in the Federal Register online version is Here (http://www.avnonline.com/index.php?Primary_Navigation=Editorial&Action=View_Article&Content_ID=108532) ) and from what I am seeing, the guy who wrote it is more or less saying that webmasters won't have to keep the records (unless of course they are primary producers) and instead will only have the burden of getting their 2257 statements in the proper place and format.

This is totally different than anything I have yet seen.
Being a printed publication, AVN has a long lag time of one to three months. That editorial PREdates the announcement. [/b][/quote]
The article was written before the changes were published in the federal register. But it sure sounds like the guy writing it had a copy. Some of the stuff in there is verbatim from the changes.

[RawAlex]

sarettah, is your company going to post some sort of security bond or other to assure the long term existance of records? Will there be any way for people to know that you won't just run out of money or otherwise decide to "just close it down" a year from now, leaving websites in the breech?

Wondering how all that would work with a third party.

Alex

[sarettah]

Originally posted by RawAlex@Aug 5 2004, 11:36 AM
sarettah, is your company going to post some sort of security bond or other to assure the long term existance of records? Will there be any way for people to know that you won't just run out of money or otherwise decide to "just close it down" a year from now, leaving websites in the breech?

Wondering how all that would work with a third party.

Alex
Hey Alex...

short answer No, and ir would not matter.

What I am trying to accomplish iis a database that would allow folks to grab the 2257 info they need to get up to snuff quick and easy. I would NOT be a holder of records in any legal sense of the word. I would not be being linked to by sites.

Therefore, there is no need for bonding and if I went out of biz, so what. Then you have to go and research your own records instead of me having done the research for you.

Since I do not plan to charge anything to access the database and there will be no warranties as to the completeness of the database, there is no liability on my end.

The ides ia to give folks a place where they can go grab the missing parts of their paperwork quickly.

Say you are a webmaster and you have a set that you know came from such and such provider. You would go in, select that producer/provider and you would be presented a list of all sets that the database contains for that provider. If the provider has provided a complete dataset to me and updates regularly then there is a good chance you will find the set and can select it. If the provider has not provided the data then there is a good chance you will not find the set. If you do not find the set or the provider, you the webmaster could elect at that time to add the provider and set to the database (next time someone else comes looking, they will find the provider and set).

If the data is there, you would then be able to download all the 2257 info that the database knows about the set, who is in it, what all their known aliases are, when it was produced, etc. Whatever info the database knows about it. If the producer or performer has elected to place an id document into the database you could also grab that (still working the security shit out on that...thinking about making you go back to the provider for it, but also have stuff in place on the screen for a performer to provide a default id document if they choose).

This database would be a service to the industry, nothing more, nothing less. Just a way to get a quick start on bringing the paper trail together.

As to making money from it, there are several places I could do that. First and foremost being the ability to spider your sites (htp/ftp/ or telnet) to pull in all your urls and give you a quick start setup in the database.

If people participate then there is a good chance of having a nearly complete set of records listing all urls, videos, image sets, magazines and books (etc) that the performer has been tied to along with all their aliases. If noone participates then it won't be worth shit.

Since you would download the info for your local record keeping, if I went out of business the next day, you would be none the worse off.

I know it is strange for someone to actually do something for the good of the industry without an actual profit motive, but that is the situation here. If you ask around, I have provided many folks with programs gratis, I have helped many people get started or get out of jams by providing hosting and domains to use free. I have not even skimmed their traffic. I know that makes me an enigma and somewhat of an idiot but I would much rather be known as "the nice guy" when I die then I would want to be known as "the theiving asshole". I fully believe that what goes around, comes aroundand I attempt to build up as much good karma as I can. Sheez, I am an idiot. I do programming projects without receiving any cash up front and do not ask for any cash until it is done no matter how much of a nightmare project it becomes in my mind. You will not find one person oin this industry that I have ripped off in any sense of the word (and hence, I have yet to be ripped off) This philosophy gives me room to breathe. If I haven't taken any cash up front and I can't make the deadline or for some other reason complete a project noone is out anything but time and generally there are no hard feelings.

I am not a big name player, I am just little old me. My expertise is databases, I suck at web design, I suck at gallery building, but at database I can offer up expertise and experience.

This particular database could easily become a monster on me very rapidly. I have to look at it with the view that data is data is data. If I try to picture the entire mountain, it becomes overwhelming real quickly, instead I look at each little chunk and say, "yep, I can do that". If I get enough of the little chunks done then I end up with a big chunk and eventually I have the mountain under control.

lolol...didn't mean to go on like that but eventually I needed to say all that out loud because most people wonder where I come from and that is pretty much it. I got my start in this business by working for the folks who hosted and managed the Crescent sites so I know how to make money quick if I wanted to, unfortunately I have a conscience that does not allow me to be dishonest beyond the occasional white lie to my kids that keeps Santa Claus and the Easter Bunny alive.

[sarettah]

Originally posted by sarettah@Aug 5 2004, 12:10 PM
You will not find one person oin this industry that I have ripped off in any sense of the word (and hence, I have yet to be ripped off)
Just to clarify, you could find 2 people who will never try me a s a boardwhore again. One that didn't like what I said, the other who couldn't keep track of what they offered me so that I begged out.

Both swore that they would never do business with me again. One probably wouldn't, but since then he has been exposed as a general asshole anyway and the other one probably would because time and my actions have pretty much healed that wound.

[RawAlex]

I guess the other question is this: Do we have some sort of guidance regarding content produced and published before the activation date of these (in my mind unconstituional) changes to the laws? Does this date back to day one of 2257? Has the justice department issued any guidelines in this matter?

Is this a project based on a hunch? Is it not likely that there will be a line drawn that says "for content produced before date X, you need only the primary, and after date X, the content must have records at the place of business of the secondary"?

I haven't seen the answers to these sorts of questions.

Alex

[sarettah]

Originally posted by RawAlex@Aug 5 2004, 02:16 PM
I guess the other question is this: Do we have some sort of guidance regarding content produced and published before the activation date of these (in my mind unconstituional) changes to the laws? Does this date back to day one of 2257? Has the justice department issued any guidelines in this matter?

Is this a project based on a hunch? Is it not likely that there will be a line drawn that says "for content produced before date X, you need only the primary, and after date X, the content must have records at the place of business of the secondary"?

I haven't seen the answers to these sorts of questions.

Alex
It is one of those questions that is still outstanding. I am going with the idea that if you create a record, go for overkill. get as complete of a record as you can. Since the record keeping requirements are actual law at present, then I am approaching it as if you have content out there, you should have records for it.

but, if you read the changes you see:

" (d) For any record created or amended after [insert date 30 days
after publication of the final rule in the Federal Register], all such
records shall be organized alphabetically, or numerically where
appropriate, by the legal name of the performer (by last or family
name, then first or given name), and shall be indexed or cross-
referenced to each alias or other name used and to each title or
identifying number of the book, magazine, film, videotape, computer-
generated image, digital image, picture, or other matter (including but
not limited to Internet computer site or services). If the producer
subsequently produces an additional book, magazine, film, videotape,
computer-generated image, digital image, or picture, or other matter
(including but not limited to Internet computer site or services) that
contains one or more visual depictions of actual sexually explicit
conduct made by a performer for whom he maintains records as required
by this part, the producer shall add the additional title or
identifying number and the names of the performer to the existing
records and such records shall thereafter be maintained in accordance
with this paragraph."

Which could be interpreted to mean that you don't have to have all that data if you created the record prior to the changes going into effect.

This is the type of stuff that keeps lawyers employed.

Since I am not a lawyer, but rather a database administrator, I always run on the premise that you can never have too much data. So, if you got inspected and you could produce a record that tracks the performer all the way back to when she started in vaudeville back in 1908, then what the hell, go ahead and produce it. It can't hurt.

[gonzo]

Originally posted by sarettah@Aug 5 2004, 12:10 PM
lolol...didn't mean to go on like that but eventually I needed to say all that out loud because most people wonder where I come from and that is pretty much it. I got my start in this business by working for the folks who hosted and managed the Crescent sites so I know how to make money quick if I wanted to, unfortunately I have a conscience that does not allow me to be dishonest beyond the occasional white lie to my kids that keeps Santa Claus and the Easter Bunny alive.
:pearl:

[sarettah]

Originally posted by RawAlex@Aug 4 2004, 12:53 PM
1 - Isn't it the job of the congress and hosue to write, amend, and modify the laws of the nation? I can understand a "clarification" of the rules, but what I see here is a wholesale revision and change to the written law that creates burdens that were not previously in place, and does so without indicating effective dates, or how far back these records must suddenly be kept.

Yes, Alex. In this country Congress makes the laws. Thank you for reminding me of this.

First of all, let me preface this, as always with the statement “I am not a lawyer”, however I am an idiot! Perhaps we are all idiots.

I have been doing a tremendous amount of research as of late on the current 2257 requirements and the new changes, the whole bit. I have been watching the boards go crazy with questions, suggestions, ideas, and general wholesale panic.

Today, I spent quite a bit of time going back through all the various documents I have read and what I have asked my lawyer to interpret for me. I basically went through 2257 from origin to present.

I realized today as I reread the “Sundance v Reno” decision hat the op/ed piece in avnonline was probably 100% correct and that for the most part, these changes will most probably not affect us anymore than the current rules do.

Sundance v Reno is a tremendously important part of this entire picture. In Sundance v Reno, the 10th circuit court of appeals basically found that there was a major ambiguity in the rules as promulgated by Reno. The definition of producers as defined in Reno’s rules pretty much brings all webmasters in as “secondary” producers although it did not mention the internet or websites explicitly. Ashcroft’s version of the rule explicitly specifies that webmasters are clearly considered a secondary producer by bringing computers and websites into the definition. Sundance v Reno pretty mush wiped out the definition of secondary producers because of the ambiguity that appears in the exemption clause. The exemption clause states that a producer does not include anyone whose conduct is limited to Photo processing, Mere distribution or any activity (other than what they defined as a producer) that does not involve the hiring, contracting for, managing or otherwise arranging for the participation of the performer(s).

Sundance V Reno (this is a laymen’s plain language interpretation as I understand it) stated that Reno’s rules attempted to broaden the scope of the law that Congress had passed by enlarging the group that could be considered producers. The definition of producer as congress passed the law is:

“the term ''produces'' means to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted”

The 10th circuit found ambiguity in this in that a person that publishes or reissues does not necessarily “hire, contract, etc”. They reasoned that the way the law was written was poor but that the DOJ did not have the right to rewrite the law, that only Congress had that right. They pretty much said that the words included that described hiring etc were intended to mean that that was what Congress considered a producer, someone who was actually involved in producing the sexually explicit content, not someone who just published it.

Now, the tenth circuit only controls those areas that are in the tenth circuit, so it is possible for another court to rule differently but the Sundance decision does provide a fairly clear precedent that can be cited.

The importance of this to us, the Adult Webmasters who do not produce our own content but instead purchase it from the original producers or through brokers is that we would NOT be required to keep copies of all the records. We could continue to reference back to the primary producer as record keeper. Many of us would still have many changes to make to come into compliance if Ashcroft’s rules go into effect. We would have to get our 2257 statements into the proper position on our site, we would possibly have to resize the statements, things like that, but if Sundance held true, we would not have to go back and produce the paper trail (which in my mind is the nightmare aspect of this whole thing).

Anyway, as I said, I am not a lawyer. I would suggest that everyone consult with their legal representation before making any decision as to what they are going to do. Me, I’m going to go eat my dinner

[aeon]

http://originaldo.com/john-ashcroft-time.jpg

:salute:

[sarettah]

From Sundance V Reno (I love the Alice in Wonderland comment...lololol):

"Attempting to justify its regulation, the government urges upon this court a tortured reading of the statute. The government contends the second part of § 2257(h)(3), beginning with "does not include mere distribution," was actually intended to broaden the scope of the statute. The government's approach leads us down a path toward Alice's Wonderland, where up is down and down is up and words mean anything. The words "but does not include ... any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted," the argument goes, were not intended to "not include" anyone listed above, but were actually intended by implication only to include more activities in the definition. This is too much of a stretch. In reviewing statutes, courts do not assume the language is imprecise, as the government would have us do. See United States v. LaBonte, ___ U.S. ___, 117 S. Ct. 1673, 1677 (1997). Rather, we assume that in drafting legislation, Congress says what it means. Id. This is not a case of verbal ambiguity presenting accepted alternative meanings; it is one of an agency twisting words to reach a result it prefers. Although § 2257(h)(3) was poorly drafted and should never be used as a model of the English language, its intent is clear to this court.

One wonders, looking at the regulation, why the government did not follow the logic of its own argument when implementing the regulation.(7)

If the second clause of the statute actually was intended to broaden the definition of produces to include activities that "involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted," it seems odd that none of those activities are included in the regulatory definition of producer. The regulation defines a producer as a person who is a primary or secondary producer, yet the definitions of primary and secondary producer do not address hiring, contracting for, managing, or otherwise arranging for participation, as they should according to the government's arguments. See 28 C.F.R. § 75.1&copy;(1)-(3).

Explaining its position, the government states "[t]he structure of the statute, which identifies 'mere distribution' as the activity specifically excluded from the definition of 'produces,' suggests that Congress did not intend to exempt actual producers from the definition, but only those whose involvement in production is wholly tangential." The problem with this position is the statute does not identify "mere distribution" as the only activity specifically excluded, but also "any other activity" basically not involving contact with the performers. 18 U.S.C. § 2257(h)(3). The government's explanation simply ignores the obvious import of the final clause of the statute.

The government also argues the Attorney General properly rejected the district court's reading of the statute because if "[S]ection 2257(h)(3) is interpreted that way, the clause 'includ[ing] the duplication, reproduction, or reissuing of any such matter' would be read out of the statute, because such activities would not necessarily involve the hiring, contracting for, or managing of performers." This is wrong. The clause would not be read out of the statute because it is easy to imagine persons duplicating, reproducing, or reissuing material they originally created who would have had the requisite contact with the performers, and as a result such persons would be subject to the requirements of the statute. Just because the exclusionary clause would make the statute inapplicable to some duplicators, reproducers, and reissuers is no reason to justify reading it out of the statute -- narrowing the field is the very nature of exclusions.

The government further argues its comprehensive regulatory scheme is necessary because of the difficulties involved in enforcing the record keeping requirements only on those producers who hire, contract for, manage, or otherwise make arrangements for the participation of sexual performers.(8)

"[S]uch considerations address themselves to Congress, not to the courts." MCI Telecommunications, 512 U.S. at 234 (quoting Armour Packing Co. v. United States, 209 U.S. 56, 82 (1908)). Of course, this court is sympathetic to the purported(9)

goals of this legislation -- preventing the sexual exploitation of children. And although it seems the Attorney General has identified a problem with its effective enforcement -- that it is drawn in such a way as to make it narrow in application(10)

-- neither the court nor the Attorney General has the authority to rewrite a poor piece of legislation (if, indeed, that is what it is). That responsibility lies solely with Congress. "

[aeon]

It's great and all...debating this, but the reality is - most people know the 10th circuit struck down the defintion of secondary producer under clinton but it's been re-interpreted and for a reason.

If they decide to enforce this, and the right leaning smut peddlers are gonna help put them back in office, who's gonna be the test case?

Bless INGdirect and an apostille - I won't be the test.

[sarettah]

Originally posted by aeon@Aug 5 2004, 08:35 PM
It's great and all...debating this, but the reality is - most people know the 10th circuit struck down the defintion of secondary producer under clinton but it's been re-interpreted and for a reason.

If they decide to enforce this, and the right leaning smut peddlers are gonna help put them back in office, who's gonna be the test case?

Bless INGdirect and an apostille - I won't be the test.
Hey Aeon,

The thing is, it has'nt been reinterpreted. The DOJ is using the same language in their rules as Reno did. The 10th circuit already said that language would not stand.

And yes, the test case is the bitch, the whole problem with laws and such is the amount of time and money that most folk can afford in the fight is miniscule compared to the amount of time and money the government can spend.

When I first went to Jim (my lawyer, a free speech guy) with all of this. He went through the changes for me and gave me a call a few hours later and said "You know that most of that is pretty much blatantly unconstitutional, don't you". I said yeah, but do you want to go and fight it on contingency for me ? At which point he just laughed and laughed... :blink:

[aeon]

I can appreciate it - and I'm not trying to offend you or your effort, at all - that's not my point. I've talked to the legalese and have an idea of what i have to do.

Things may be unconstitutional but if they are and it's enforced, someone is gonna have to be the guinea pig - I'm not gonna be in that position - I'm not gonna give another 4 years to try this over and over. This is a political & idealogocial move - not about enforcement of law. It's a re-interpretation of existing law.

edit: and if people can't figure out why it's being re-interpreted & support the people behind it, what happens is what they deserve.

[Vick]

aeon - can you please tell me who the pro-porn candidate is so I know?

Actually this isn't about politics as much as it is about keeping your business in order

and in my overly obvious statement of the night our right wing friends may vote their pocket books while our left wing friends vote their heart - and both may think they are voting with/from both

[sarettah]

Originally posted by aeon@Aug 5 2004, 09:40 PM
edit: and if people can't figure out why it's being re-interpreted & support the people behind it, what happens is what they deserve.
I am not sure what you mean by that...

Care to interpret for me...

Thanx

:)

[aeon]

Got me vick...I don't know who's the pro-porn candidate...none of them have said it but:

Take yer odds; the one praying to Jesus and bombing camel jockies, reinterpreting laws to pacify their evangelical base - or the one offering handouts to single moms & supporting gay marriages.

Which one is gonna be overtly interested in Christian morality which really doesn't look highly on porn and which one do you wanna see on the supreme court...deciding what's obscene?

Neither really isn't a choice.

[aeon]

Originally posted by sarettah+Aug 5 2004, 06:56 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (sarettah @ Aug 5 2004, 06:56 PM)</td></tr><tr><td id='QUOTE'><!--QuoteBegin-aeon@Aug 5 2004, 09:40 PM
edit: and if people can't figure out why it's being re-interpreted & support the people behind it, what happens is what they deserve.
I am not sure what you mean by that...

Care to interpret for me...

Thanx

:)[/b][/quote]
you have a bunch of evangelical christians in the white house/dept of justice...

nevermind...

[sarettah]

Originally posted by aeon+Aug 5 2004, 10:02 PM--></div><table border='0' align='center' width='95%' cellpadding='3' cellspacing='1'><tr><td>QUOTE (aeon @ Aug 5 2004, 10:02 PM)</td></tr><tr><td id='QUOTE'> Originally posted by sarettah@Aug 5 2004, 06:56 PM
<!--QuoteBegin-aeon@Aug 5 2004, 09:40 PM
edit: and if people can't figure out why it's being re-interpreted & support the people behind it, what happens is what they deserve.
I am not sure what you mean by that...

Care to interpret for me...

Thanx

:)
you have a bunch of evangelical christians in the white house/dept of justice...

nevermind... [/b][/quote]
Damn, I got that part...lolol...

I thought by your statement that you were saying we should support the people behind it.... I wasn't thinking that was right, was it ??

I will welcome the day that the covers are removed from Lady Justice and she can stand there in all her glory for the country to see..... :yowsa: :yowsa:

[RawAlex]

Vick: Standard answer, I don't know who the pro-porn candidate is, but I can tell you who the anti-porn people are. By not voting for them, you are MUCH more likely to get someone who is neutral or (quietly) pro.

I don't think this is about keeping your business is order, this is about trying to put content producrers and specifically website owners into a situation where it takes much longer to create, distribute, and profit from porn. It is a backhanded attempt by the christian left to kill the industry by burying it under rules that do not add anything to the process.

The level of detail they require, the amount of paper that would (technically) be required ot do this would mean that each and every 30 picture free site would require anywhere from 30 to 300 pieces of paper (one per performer per image) filed by URL, plus individual releases for each and every model that appears in a banner, ad, or graphic design. Standard two person scene would probably need about 100 pieces of paper to support their current rules to the letter.

Realistically, there will be the shortcut of one piece of paper and a cross reference filed for each free site.

Run a paysite with 250,000 hardcore images? You could be looking at half a million new pieces of paper to track.

The worst part? It only makes the model release available SLIGHTLY faster, as they don't have to go back to the content producer.

It's a sad situation, and the doubters on the board should read the rules carefully to see what is involved. Ashcroft and his merry band of fucktards are trying to expense you out of business.

Alex

[Vick]

Alex
You have good points but no politician will be PRO PORN or even neutral if it became an issue in this election

The christian left ???
Hmmmm (couldn't let it go)

Also again I say - DON'T VOTE (not that your vote counts anyway)

If the only choices for President are between 2 fools you wouldn't elect dog catcher in your hometown why are you voting for them to be President of the USA?


What if there was an election ......

.... and no one voted?

[RawAlex]

Vick, if nobody voted except for one man, he would make up everyone's mind. Not voting isn't solving the issue. Getting involved in the creation of a valid third option is.

Don't read my comments backwards - I doubt there is such a thing as a (publically) pro porn candidate at any level. However, Ashcroft and his evil clown posse have shown their desire to make our lives harder. I can't see the others being WORSE.

Sorry... left, right... Dyslexia rules.

Alex

[Vick]

For now please allow me to drop the political debate and get this thread back to the issue it started on

Here's an interesting email I received this morning from Garill Publishing Ltd.
www.garill.com


While I expected all this to be complicated, the latest gem from my lawyer tops it all. As you are probably aware, we are located in Canada.


Canada has recently introduced a Privacy Law, which does not allow personal information to be made public without the consent of the person in question, and they must sign an affidavit which must be witnessed in order that the information is released legally.


99% of our models have moved, disappeared, left the business, and mostly untraceable, except by government agencies looking at government ID that we have on file. I have no documentation permitting us to disclose any information about our models except to law enforcement officials. (Simply, it was not required at that time but it is retroactive to all information stored everywhere in Canada, on everyone).


I must, primarily, go by the laws of the country where I live and work. If another countries' laws contravene the primary law I have to work under, I cannot satisfy the secondary countries' requirements.


If the new regulations come into effect, I may be forced to drop any Canadian content in order to stay legal. We truly regret the US Government's decision in passing such legislation that affects so many. Had the sale of our company gone through, there would not have been any problem as the company would then have been based in the US and not hindered by our Privacy Laws. For more information about Canada's Privacy Laws see: http://www.privcom.gc.ca/ekit/index_e.asp



Getting to be a head spinner

[RawAlex]

Vick, this is going to be a major issue. Changing the record keeping requirements YEARS after the fact (depending on your read of this, this could affect content since the inplimentation of 2257), there is a very good chance that not all of the records are going to be that easy to pull up and distribute.

Imagine for a minute a generic content producer, call them "picturemasters". They have sold hundreds of CDs with thousands of images each, each set of images sources from a third party in different countries. Some of the those countries may have privacy laws or other legal restrictions regarding release of personal info. Now these companies have to go back and deal with each photographer and a lawyer in each country to assure they can meet the new 2257 for content that might have been shot 5 years ago. They may be forced to re-contact models that by now may be suffering from model's remorse, asking them to sign ANOTHER document to allow them to distribute thier private information.

You can imagine the headaches.

In the case you just mentioned, do you stop using the content, or do you use the content with a note in file regarding the legal issues?

What about content purchased from a company or photographer that is no longer in business? They should still have the custodian of records, but will that custodian be willing to extract and distribute model releases to all the buyers? Will they charge a fee?

This back dating thing makes this not only a burden, but effectively impossible.

Many many people will end up with gigs of useless content.

*sigh*

Alex

[*KK*]

One might mention that this isn't really going to be about law, or what is legal. This is going to be about how much the first one hammered is going to be able and have to spend to defend and define their position.

The last time the feds went after porn producers, the "lucky" ones spent in excess of a million in legal fees to stay out of jail. The not so lucky one I know personally did 18 months in jail. Not neccessarily because he was guilty but because if he hadn't made the deal for the time, it was highly likely that more than one of his employees might have done time, simply for being an employee.

This isn't the first time the feds have gone after internet porn, and I'm sure it won't be the last. But the cost of defense, whether you're in the right or the wrong, is sometimes enough to break a business, leaving it a shell of what it was.

[porngeekster]

Wow. I was just looking at all the 2257 stuff yesterday. A lot of stuff to figure out.

How am I supposed to get the records on sets that I've bought but that they didn't send me anything but a license and a blackened out id ?