2257 not neaded for: lascivious exhibition of the genitals or pubic area?

[BV] · 2005-06-06, 07:22 PM

I'm already currently discussing this issue with our lawyer; However I am interested in other companies remarks.

Here is the 2257 doc I am reading from:

http://straylight.law.cornell.edu/u...57----000-.html

from "h" on this page i read:
(h) As used in this section—
(1) the term “actual sexually explicit conduct” means actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of this title;

Here is the 2256 doc I have:

http://straylight.law.cornell.edu/u...56----000-.html

here is 2 A thru E:

(2) “sexually explicit conduct” means actual or simulated—
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person;

2257 says only refer to A thru D for the definition of “sexually explicit conduct”

So does this mean that you are not required to keep records for content that has:
(E) lascivious exhibition of the genitals or pubic area of any person;

and you are required only if it has:
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(B) bestiality;
(C) masturbation;
(D) sadistic or masochistic abuse; or

Let's discuss.......

BV

RobUK · 2005-06-06, 10:23 PM

First, I'm not a lawyer, and I'm not even based in the US, so what little legal knowledge I have is even less likely to be accurate when considering US law!

That said, it appears to me on a fairly lightweight reading of all this stuff (so far) that technically you could argue that simulated behaviour, as opposed to actual behaviour, falling under 2256 (2) (A)-(D) could qualify for an exemption under 75.7(a).

BUT, it strikes me that this raises its own problems. Taking 2256 (2)(C) as an example, how do you prove that a depiction is simulated masturbation rather than the real thing? Of course, that might be easier to determine in the cases of hardcore pics, but if you have a pic showing a lass with her hand in her panties, is she masturbating or simulating? Also, if you're a secondary producer, according to 75.7(b), you need to get certification from the primary producer that the content is, in fact, simulated. That could be almost as difficult as obtaining the proper records!

All of the above might, or might not, fly in court. But before you get to that stage you're going to have to endure investigation, legal fees and all the associated hassles. Given the option, I think I'd choose to have the appropriate records rather than risk everything on a judge's whim, not to mention the cost involved in even finding out what the wig-wearer feels on the matter.

As for the lasciviousness thing, I've wondered about that myself. I can see why (E) would have been skipped from the list of actual v simulated, in that it's pretty hard to simulate lasciviousness - it's either lascivious or it isn't! And, as you say, 2257 specifically applies to actual, rather than simulated, behaviour, as is reiterated in the rules. Further, I don't see why the sort of CP images that the rules are supposed to prevent couldn't just as easily be lascivious rather than hardcore. So an exception for actual lascivious stuff seems illogical, and potentially a huge loophole through which a lot of unpleasant material could fall.

Despite all that, 2257 is very clear on the definition of sexually explicit to be used, and I don't see that definition being changed in the rules (might have missed it!). It's also possible that there's some other statute or precedent that I'm unaware of that may close the loophole, but if not I'm inching towards the idea that merely lascivious material may - MAY - be exempt.

Of course, how you would go about declaring that exemption remains to be seen. The commentary is insistent that some sort of exemption statement is required where it would be applicable, and the only one set out in the rules makes no provision for something that isn't sexually explicit. Hmmm, if it can't be declared exempt, does that then mean that records must be kept afterall, even though lasciviousness appears to be excluded.... my brain hurts!!

Rob

[BV] · 2005-06-06, 10:35 PM

Quote:

Originally Posted by RobUK

.... my brain hurts!!

Rob

Yours, mine, and probably many many others. |shocking|

Useless · 2005-06-06, 11:13 PM

Quote:

Originally Posted by [BV]

Yours, mine, and probably many many others. |shocking|

That's why I don't read that crap. To me, these next couple of weeks is a big dumb game of chicken. Just wait to see who swerves first. If you see a shit load of sponsors closing shop, you'll know the outlook. It really bothers me to see people already pulling links and sites. Fuck, it only takes a few minutes to wipe away an entire server. These are the same people who put a condom on before they go out on a date.

I'm considering exhibiting my genitals rather lasciviously right now.

ArtWilliams · 2005-06-06, 11:15 PM

This makes me think of porn in Japan. Most hardcore is illegal but bukkake is not as long as you don't show the cock. That right, dump 100+ loads on a young lady's face but don't show the dickie! LOL

--art

Useless · 2005-06-06, 11:21 PM

Quote:

Originally Posted by artwilliams

This makes me think of porn in Japan. Most hardcore is illegal but bukkake is not as long as you don't show the cock. That right, dump 100+ loads on a young lady's face but don't show the dickie! LOL

--art

Japanese porn is whacked. I'll never understand why you have the model crying while she's being banged, absolutely drown her in gooey fuck juice, but blur a cock that you wouldn't see through their pubic hair anyway.

RobUK · 2005-06-06, 11:23 PM

Quote:

Originally Posted by Useless Warrior

That's why I don't read that crap. To me, these next couple of weeks is a big dumb game of chicken. Just wait to see who swerves first. If you see a shit load of sponsors closing shop, you'll know the outlook.

I'm reading - I think it's human nature to be fascinated by controversey and the "what if" horror stories. I'm also making plans to deal with contingencies, but for the moment I'm not going to do anything until I see how the wind's blowing. I'm hoping for an injunction, but if push comes to shove, and I can't find any loopholes, I'll pull my hosting out of the US and look for non-US sponsors - no more problem

Quote:

Originally Posted by Useless Warrior

I'm considering exhibiting my genitals rather lasciviously right now.

Ooooh, do we get options on free content?

Rob

ardentgent · 2005-06-09, 02:14 PM

I have just read 2257 policies from two sponsors who said that they considered pictures of the pubic area to be sexually explicit and warned us not to use them. Seems contrary to 2257 which seems to exempt E- lasivious display of the pubic area. I just don't get it.

docholly · 2005-06-09, 02:23 PM

it's like a car wreck or if you see someone pulled over by the po-po.. you know you shouldn't look at the 2257's but no matter what you just can't help it.. then you get all caught up..when really you should just drive on by until june 24 and see what happens.

|cool| of course i also subscribe to the ostrich school of reality.

2005-06-06, 07:22 PM	#1
[BV] I want to set the record straight - I thought the cop was a prostitute Join Date: Dec 2004 Location: Florida Posts: 292	2257 not neaded for: lascivious exhibition of the genitals or pubic area? I'm already currently discussing this issue with our lawyer; However I am interested in other companies remarks. Here is the 2257 doc I am reading from: http://straylight.law.cornell.edu/u...57----000-.html from "h" on this page i read: (h) As used in this section— (1) the term “actual sexually explicit conduct” means actual but not simulated conduct as defined in subparagraphs (A) through (D) of paragraph (2) of section 2256 of this title; Here is the 2256 doc I have: http://straylight.law.cornell.edu/u...56----000-.html here is 2 A thru E: (2) “sexually explicit conduct” means actual or simulated— (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of any person; 2257 says only refer to A thru D for the definition of “sexually explicit conduct” So does this mean that you are not required to keep records for content that has: (E) lascivious exhibition of the genitals or pubic area of any person; and you are required only if it has: (A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or Let's discuss....... BV __________________ BVBucks.Com BVCash.Com

2005-06-09, 02:23 PM	#9
docholly Nothing funnier than the ridiculous faces you people make mid-coitus Join Date: Aug 2003 Location: Sin-City USA Posts: 4,973	it's like a car wreck or if you see someone pulled over by the po-po.. you know you shouldn't look at the 2257's but no matter what you just can't help it.. then you get all caught up..when really you should just drive on by until june 24 and see what happens. \|cool\| of course i also subscribe to the ostrich school of reality. __________________ Support Indie Porn Sites OMGoddess You know you need some Bling!!

2005-06-06, 10:23 PM	#2
RobUK I'm going to the backseat of my car with the woman I love, and I won't be back for TEN MINUTES Join Date: Jun 2005 Location: UK Posts: 80	First, I'm not a lawyer, and I'm not even based in the US, so what little legal knowledge I have is even less likely to be accurate when considering US law! That said, it appears to me on a fairly lightweight reading of all this stuff (so far) that technically you could argue that simulated behaviour, as opposed to actual behaviour, falling under 2256 (2) (A)-(D) could qualify for an exemption under 75.7(a). BUT, it strikes me that this raises its own problems. Taking 2256 (2)(C) as an example, how do you prove that a depiction is simulated masturbation rather than the real thing? Of course, that might be easier to determine in the cases of hardcore pics, but if you have a pic showing a lass with her hand in her panties, is she masturbating or simulating? Also, if you're a secondary producer, according to 75.7(b), you need to get certification from the primary producer that the content is, in fact, simulated. That could be almost as difficult as obtaining the proper records! All of the above might, or might not, fly in court. But before you get to that stage you're going to have to endure investigation, legal fees and all the associated hassles. Given the option, I think I'd choose to have the appropriate records rather than risk everything on a judge's whim, not to mention the cost involved in even finding out what the wig-wearer feels on the matter. As for the lasciviousness thing, I've wondered about that myself. I can see why (E) would have been skipped from the list of actual v simulated, in that it's pretty hard to simulate lasciviousness - it's either lascivious or it isn't! And, as you say, 2257 specifically applies to actual, rather than simulated, behaviour, as is reiterated in the rules. Further, I don't see why the sort of CP images that the rules are supposed to prevent couldn't just as easily be lascivious rather than hardcore. So an exception for actual lascivious stuff seems illogical, and potentially a huge loophole through which a lot of unpleasant material could fall. Despite all that, 2257 is very clear on the definition of sexually explicit to be used, and I don't see that definition being changed in the rules (might have missed it!). It's also possible that there's some other statute or precedent that I'm unaware of that may close the loophole, but if not I'm inching towards the idea that merely lascivious material may - MAY - be exempt. Of course, how you would go about declaring that exemption remains to be seen. The commentary is insistent that some sort of exemption statement is required where it would be applicable, and the only one set out in the rules makes no provision for something that isn't sexually explicit. Hmmm, if it can't be declared exempt, does that then mean that records must be kept afterall, even though lasciviousness appears to be excluded.... my brain hurts!! Rob

2005-06-06, 11:15 PM	#5
ArtWilliams You can now put whatever you want in this space :) Join Date: Sep 2004 Location: Toronto, Canada Posts: 6,244	This makes me think of porn in Japan. Most hardcore is illegal but bukkake is not as long as you don't show the cock. That right, dump 100+ loads on a young lady's face but don't show the dickie! LOL --art

2005-06-09, 02:14 PM	#8
ardentgent Trying is the first step towards failure Join Date: Apr 2003 Location: Atlanta Ga Posts: 121	I have just read 2257 policies from two sponsors who said that they considered pictures of the pubic area to be sexually explicit and warned us not to use them. Seems contrary to 2257 which seems to exempt E- lasivious display of the pubic area. I just don't get it.