Airdick, you're right. I think most webmasters have been relying on the idea that your content provider is the custodian of records, and all 2257 documentation is held by that person. All we needed to do was state who the content provider was.
The new ruling tells us we were wrong to think this:
Quote:
Thirty-six commenters commented that even if the effective date
were changed to July 3, 1995, the regulation would be overly burdensome
on secondary producers because producers would be required to obtain
records for thousands--even hundreds of thousands--of sexually explicit
depictions dating back a number of years. These commenters claimed that
secondary producers would likely be unable to locate many of those
records from primary producers who may have moved, shut down, or
otherwise disappeared. According to the commenters, those secondary
producers who could not locate such records would be forced to remove
the sexually explicit depictions, which would be a limit on
constitutionally protected material.
The Department declines to adopt these comments. Producers were on
notice that records had to be kept at least by primary producers for
depictions manufactured after July 3, 1995. In addition, commenters
were similarly on notice that the D.C. Circuit, in American Library
Ass'n v. Reno, had upheld the requirement that secondary producers
maintain records. The Department is not responsible if secondary
producers chose to rely on the Tenth Circuit's holding in Sundance and
not to maintain records while ignoring the D.C. Circuit's holding in
American Library Ass'n v. Reno. A prudent secondary producer would have
continued to secure copies of the records from primary producers after
July 3, 1995. If those records, which are statutorily required, are not
currently available, then the commenters are correct that they will be
required to comply with the requirements of all applicable laws,
including section 2257(f). They are incorrect, however, to claim that
this would result in an impermissible burden on free speech. As the
D.C. Circuit held, the government has a compelling state interest in
protecting children from sexual exploitation. If the producers (primary
and secondary) of sexually explicit depictions cannot document that
children were not used for the production of the sexually explicit
depictions, then they must take whatever appropriate actions are
warranted to comply with the child exploitation, obscenity, and record-
keeping statutes. The First Amendment is not offended by making it
unlawful knowingly to fail or refuse to comply with the record-keeping
or labeling provisions of this valid statute.
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This is the bit that made me think the Vogons had written this whole document.
I also think this is one of the bits the lawyers will fight over. "A prudent secondary producer"??
It's like: "We're going with this judgement... It's not our fault if you chose to conduct business according to a whole other ruling which we in our infinite wisdom are choosing to ignore..."
By the way, shall I add the obligatory IANAL disclaimer? Because, while I've read the document, I'm only offering my views on this.