2257 regs published in full

[Wazza]

Originally Posted by grandmascrotum

I'm reading through the whole thing now. It reads like it was written by petulant Vogons.

And there's a decent chance that Gag Halfrunt is the man pulling the strings...

|viking|

[Sinistress]

Okay, I've got a question about this part, (the part in bold)

The statute defines
``produces'' as ``to produce, manufacture, or publish any book,
magazine, periodical, film, video tape, computer-generated image,
digital image, or picture, 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.'' 18 U.S.C. 2257(h)(3).

I'm just not sure what my question is exactly, but that part stuck out to me...

[Sinistress]

Or is that the old regs? *getting mildly confused*

[Chop Smith]

Re-reading the thread, I notice several references to "If it passes...", "If it becomes law...", etc. The law has been in place for years (1988 as amended). What you are dealing with here is the rules and regulations for the Attorney General to enforce the existing law as enacted by Congress. You will recall that last year (June,2004), the Justice Department proposed the changes. This final rule and regulations are effective June 23, 2005. Therefore, you have 28 days to may sure you are complying.

The next step will be for the law, rules and regulations to be tested in the court system. This will mean that one of us poor bastards will be arrested, charged with a felony and spend everything he has earned and everything he can borrow to fight it. Based on history, our laws are enforced from the bottom up. Therefore, the test will be made against a small operator like myself or maybe even a free site builder that submits a few sites a week. I would almost bet that there example will be someone that can not afford to defend themselves.

Damn, did I say all of the above in public?

[swedguy]

Sinistress, I've been stuck on that part for the last 10 minutes too

Taken from xxxlaw's http://my.execpc.com/~xxxlaw/2257Tables5.24.05.htm :

(4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following:

(ii) Mere distribution;

(v) A provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service.


Doesn't it sound like it could make Google Image not a producer?

If it is, why wouldn't a thumb TGP be included there too? The only thing they are doing is distributing.

[Sinistress]

Okay new question, last bit was the old one... again I'm not really sure how to word the question, but am going to put the bits in bold..

(c) Producer means any person, including any individual,
corporation, or other organization, who is a primary producer or a
secondary producer.
(1) A primary producer is any person who actually films,
videotapes, photographs, or creates a digitally- or computer-
manipulated image, a digital image, or picture of, or digitizes an
image of, a visual depiction of an actual human being engaged in actual
sexually explicit conduct.
(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, digitally- or computer-
manipulated image, picture, or other matter intended for commercial
distribution that contains a visual depiction of an actual human being
engaged in actual sexually explicit conduct, or who inserts on a
computer site or service a digital image of, or otherwise manages the
sexually explicit content of a computer site or service that contains a
visual depiction of an actual human being engaged in actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing.
(3) The same person may be both a primary and a secondary producer.
(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 or film processing, including digitization of previously
existing visual depictions, as part of a commercial enterprise, with no
other commercial interest in the sexually explicit material, printing,
and video duplicators;
(ii) Mere distribution;
(iii) Any activity, other than those activities identified in
paragraphs (c) (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;
(iv) A provider of web-hosting services who does not, and
reasonably cannot, manage the sexually explicit content of the computer
site or service; or
(v) A provider of an electronic communication service or remote
computing service who does not, and reasonably cannot, manage the
sexually explicit content of the computer site or service.
(d) Sell, distribute, redistribute, and re-release refer to
commercial distribution of a book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter that contains a visual depiction of an actual
human being engaged in actual sexually explicit conduct, but does not
refer to noncommercial or educational distribution of such matter,
including transfers conducted by bona fide lending libraries, museums,
schools, or educational organizations.
(e) Copy, when used:
(1) In reference to an identification document or a picture
identification card, means a photocopy, photograph, or digitally
scanned reproduction, and
(2) When used in reference to a sexually explicit depiction means
the sexually explicit image itself (e.g., a film, an image posted on a
web page, an image taken by a webcam, a photo in a magazine, etc.).
(f) Internet means collectively the myriad of computer and
telecommunications facilities, including equipment and operating
software, which constitute the interconnected world-wide network of
networks that employ the Transmission Control Protocol/Internet
Protocol, or any predecessor or successor protocols to such protocol,
to communicate information of all kinds by wire or radio.
(g) Computer site or service means a computer server-based file
repository or file distribution service that is accessible over the
Internet, World Wide Web, Usenet, or any other interactive computer
service (as defined in 47 U.S.C. 230(f)(2)). Computer site or service
includes without limitation, sites or services using hypertext markup
language, hypertext transfer protocol, file transfer protocol,
electronic mail transmission protocols, similar data transmission
protocols, or any successor protocols, including but not limited to
computer sites or services on the World Wide Web.
(h) URL means uniform resource locator.
(i) Electronic communications service has the meaning set forth in
18 U.S.C. 2510(15).
(j) Remote computing service has the meaning set forth in 18 U.S.C.
2711(2).
(k) Manage content means to make editorial or managerial decisions
concerning the sexually explicit content of a computer site or service,
but does not mean those who manage solely advertising, compliance with
copyright law, or other forms of non-sexually explicit content.

[Sinistress]

Originally Posted by swedguy

Sinistress, I've been stuck on that part for the last 10 minutes too

Taken from xxxlaw's http://my.execpc.com/~xxxlaw/2257Tables5.24.05.htm :

(4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following:

(ii) Mere distribution;

(v) A provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service.


Doesn't it sound like it could make Google Image not a producer?

If it is, why wouldn't a thumb TGP be included there too? The only thing they are doing is distributing.

Yeah exactly, and the way that they define "Manage" ....technically would a lot of us not fall under "those who manage solely advertising" ????

[Chop Smith]

Originally Posted by swedguy

Doesn't it sound like it could make Google Image not a producer?

If it is, why wouldn't a thumb TGP be included there too? The only thing they are doing is distributing.

The way I read it - the thumb TGP would be publishing the thumb. If they publish the thumb then they are also considered a producer. Therefore they must have the proper documentation in their files.

[Robbo]

AVN has a few articles with comments from a few prominent attorneys. Might clarify a few things. Or confuse them depending on your ability to digest legal nomenclature. fyi nomenclature = mumbo jumbo

[swedguy]

Originally Posted by Chop Smith

The way I read it - the thumb TGP would be publishing the thumb. If they publish the thumb then they are also considered a producer. Therefore they must have the proper documentation in their files.

Google Images also publishes the thumb. Both could be considered "electronic communication service providers" (traffic sources). Google Images and a thumb TGP is basically the same thing, except Google Images has more ads than a thumb TGP.

But this part may be where a thumb TGP get included as publisher:

snipped from the section Sinistress posted: "...editorial or managerial decisions concerning the sexually explicit content of a computer site or service"

A thumb TGP makes editoral decisions regarding what they post, SE's don't.

[cellinis]

Originally Posted by swedguy

Google Images also publishes the thumb. Both could be considered "electronic communication service providers" (traffic sources). Google Images and a thumb TGP is basically the same thing, except Google Images has more ads than a thumb TGP.

But this part may be where a thumb TGP get included as publisher:

snipped from the section Sinistress posted: "...editorial or managerial decisions concerning the sexually explicit content of a computer site or service"

A thumb TGP makes editoral decisions regarding what they post, SE's don't.

Doesn't google (or any other search engine) make an editorial decision (based on their algorithms if not human intervention) on what kind of content from what site they publish?

As it is google uses our content (without any regards to copyrights) to sell its own advertisments around and now they should be exempt from a law that nearly puts half of us out of business?

Okay, I may sound pretty cheesed about it. I just paid a fortune to my lawyer |shocking|

[Mr. Blue]

Originally Posted by Chop Smith

The next step will be for the law, rules and regulations to be tested in the court system. This will mean that one of us poor bastards will be arrested, charged with a felony and spend everything he has earned and everything he can borrow to fight it. Based on history, our laws are enforced from the bottom up. Therefore, the test will be made against a small operator like myself or maybe even a free site builder that submits a few sites a week. I would almost bet that there example will be someone that can not afford to defend themselves.

Damn, did I say all of the above in public?

That's usually how it will happen and will happen here. I wouldn't be touching teen content with a ten foot pole right now. They'll most likely go after some small potatoes, ones doing teen sites, and ones that might have the 2257 on the net a little screwed up.

Hopefully the ACLU would pick up a case like that, but we'll see...maybe some injunctions, etc will be put into place to make this a little more acceptable.

[Chop Smith]

Originally Posted by swedguy

A thumb TGP makes editoral decisions regarding what they post, SE's don't.

So if you were on the jury, you would conclude that the Thumb TGP made an editorial decisions to publish the thumb supplied to him by a submitter?

I have a few sites with thumbs from free hosted galleries and hosted free sites. I bet I will take them down by 06/23.

[airdick]

Originally Posted by Greenguy

Just one question to EVERYONE that has content on their sites - the current version of 2257 (not this new one, the one that's been in place for some time now) requires you to list the address of the location of the records, which is supposed to be your main place of business & you are required to have the documents available during normal business hours.....this is not new.

A lot of you are saying that you didn't have this info in place already?

I think 99% of paysites and affiliates that comply with the previous regulation rely on the Sundance vs. Reno decision and just list the custodian of records information provided by the primary producer:

"In fulfilling its obligations under Section 2257, relies on the plain language of the statute and on the well-reasoned decision of the Tenth Circuit Court of Appeals in Sundance, which states that entities who merely distribute content, and have no role in procuring models or producing content, are exempt from on-site record keeping requirements."

[Ms Naughty]

The document makes reference to sites that onsell adult movies and says that publishing a picture of the DVD/Video cover on your site still makes you into a secondary producer who has to have documentation regarding the models on the cover. (A minefield for adult stores... and for those of us who review movies or use boxcovers to sell movies).

Five commenters commented that the definitions of producer and
secondary producer would encompass on-line distributors of pornography
who digitize the covers of videos, DVDs, and magazines but are not
involved in the actual production of the material. One of these
commenters also claimed that the definition of producer should be
changed to allow on-line distributors to rely upon records provided to
them by the immediately preceding secondary producer, in accordance
with the Department's representation to the court in American Library
Ass'n v. Reno. The Department declines to adopt these comments. The
definition of producer is of necessity broad enough to encompass those
who digitize images--even for distribution purposes--because in so
doing, a new sexually explicit depiction is created. The Department has
determined that it is not possible to change the definition in such a
way as to exclude distributors while not also creating an unacceptable
loophole in the coverage of the regulation.

So a thumb TGP AND Google Images would appear to be in the same basket.

Now that I've read the whole thing, so much of it seems like it could be challenged in a court.

I think whoever the unfortunate "low hanging fruit" is that gets taken to court, we should be prepared to put up a fighting fund for them. So much of our livelihoods will depend on how the court cases pan out, we need to help out whoever it is that gets targetted.

[Fonz]

Ok, after reading for a few hours most things are "pretty clear" for me. Just 1 question. Does this apply to banners and other promo materials also?

[Ms Naughty]

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:

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.

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.

[Ms Naughty]

Fonz, I suspect banners come into it as well - same as DVD boxcovers...

OK... I'll step out of this debate, I'm starting to sound like I know what I'm talking about.

[Chop Smith]

Originally Posted by grandmascrotum

...I'm starting to sound like I know what I'm talking about.

That is the big problem here. After reading and re-reading, we are all guessing. Today, I will be talking to my legal adviser. He will be guessing also but he will get paid for his guess.

My decision is to comply according to my best guess.

[swedguy]

Originally Posted by Chop Smith

So if you were on the jury, you would conclude that the Thumb TGP made an editorial decisions to publish the thumb supplied to him by a submitter?

I have a few sites with thumbs from free hosted galleries and hosted free sites. I bet I will take them down by 06/23.

I don't know anything about this really, I'm just trying to understand it a little bit better before I get some news from the lawyer. So don't take anything I say seriously, I'm just a pronographer

To me there is no real difference between Google Images and a thumb TGP. Both provides the same service, both stores the images locally.

But if there is a difference (legally) between for example Google Images and a thumb TGP, I would say that it is because we choose what we want on the site. Google spiders the web and just adds what it finds, with no editing.

[tickler]

Originally Posted by swedguy

To me there is no real difference between Google Images and a thumb TGP. Both provides the same service, both stores the images locally.

But if there is a difference (legally) between for example Google Images and a thumb TGP, I would say that it is because we choose what we want on the site. Google spiders the web and just adds what it finds, with no editing.

One uses an "AI and the other uses a real person(plus scripts) to do the editing, maybe.

Also there seems to be an indication that they don't want to persure dynamic generated pages. Might be a hole that people can exploit. If so, TGPs/MPGs/LL might have to start allowing it if they want any WM content for their sites.

I don't have a problem with the record keeping for the most part, except, for the putting addresses on the web pages part where the general public can access them.

[guitar riff]

UMM where did everyone get the rule must be in office 20 hrs a week I seem to be reading things diferently maybe

this says 10 hrs a day

(b) Advance notice of inspections . Advance notice of record inspections shall not be given.

(c) Conduct of inspections.

(1) Inspections shall take place during normal business hours and at such places as specified in § 75.4. For the purpose of this part, ‘‘normal business hours’’ are from 8 a.m. to 6 p.m., local time, and any other time during which the producer is actually conducting business relating to producing depiction of actual sexually explicit conduct.

[swedguy]

I don't worry so much about this, I think it's good actually. Takes away a bit of the Wild West in this business.

The only thing that will be a gangstah dick in my ass, is to map each set with every URL they're on. Give me a year and I might finish it. But a month? It's just not possible.
If someone came to me and asked what set it is and show me the papers, it would take me couple of minutes and I could show it to them.

[xxxjay]

Hey Guys - Raw Alex is probably one of the most knowledgeable 2257 guys that you will see and he is very helpful, but nothing (I repeat nothing) is going to help you more than hiring your own lawyer and seeing just how this new 2257 effects YOUR business model.

[rollergirl]

Gramma, You have mail.