2257 regs published in full

[LindaMight]

Love the suit comment....LOL

Linda

[RawAlex]

Sort of suits the discussion, no?

Alex

[koolkat]

Hopefully this hasn't been answered already in one of the other posts, but I have a question regarding some comments in the federal register...

Originally Posted by Federal Register

Two commenters commented that the definition of producer in the
proposed rule was too broad and would encompass a convenience store
that sold sexually explicit magazines or a movie theater that screened
R-rated movies. The Department declines to adopt this comment. As the
rule makes clear, mere distributors of sexually explicit material are
excluded from the definition of producers and under no plausible
construction of the definition would a movie theater be covered merely
by screening films produced by others.

Now if a movie theatre or store is not required to maintain this information, wouldn't that just make affiliated distributors like the theater?

Originally Posted by Federal Register

The record-keeping requirements apply to ``[w]hoever produces'' the
material in question. 18 U.S.C. 2257(a). 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).

Doesn't accroding to the part "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", affiliates would be exempt since they are merely distributors?

[Vink]

Good point Koolkat.
If I have to keep records as an affiliate, I my as well start shooting my own content for my own paysites. Which I should do anyway. But the affiliate thing suits my lifestyle better. I go out of town alot, and don't work for weeks at a time.

[Barron]

Originally Posted by koolkat

Hopefully this hasn't been answered already in one of the other posts, but I have a question regarding some comments in the federal register...

Now if a movie theatre or store is not required to maintain this information, wouldn't that just make affiliated distributors like the theater?

Doesn't accroding to the part "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", affiliates would be exempt since they are merely distributors?

I agree with this train of thought, but when I asked my lawyer the same question, he said no. It does not apply.

I countered with, "The distributor for adult magazines places the magazine on the rack, its the retailer that sales the magazine. When the DOJ bastardized the word distributor and turned retailers into distributors, we should be able to apply that to affiliates because someone else is providing the finished product, ie the membership site."

He replied, "That might apply if you purchase a finished product, such as a plugin, and offer it for resale. But, the regs are calling the webmaster a producer. They are not calling the retailer a producer. They are calling the retailer distributor."

As it relates to FHG's and free content supplied by the affiliate program, I disagree with him. But, he is the one that has to defend me in court if I get arrested, so its a mute point.

Bottom line, no matter the source of the depiction, if you publish it, you have to have age docs.

I think the part we have to remember is that the regs are not statute. The regs only spell out how the statute is going to be inforced. And the say they arent going to enforce compliance on convienence stores or theaters.

Google and Yahoo dont have editorial control, but they do publish. It will be interesting in the coming months to see how that plays out.

EDIT:

One thing is for sure, not even the lawyers are in complete agreement when comes to interrupretation. I'm not a lawyer, but my best advice is listen to your lawyer a go with what he thinks he can defend in court.


_

[tickler]

I think I still have one with black and white horizontal stripes somewhere!

[tickler]

Toby:
Unfortunately, that will not do anything for you under the new rules. Even if the gallery is softcore also, if the "content set" contains hardcore, it needs to be documented.

So basically Thumb Preview TGPs are going to need the documentation for the content on any galleries.

So a gallery/free site maker, would not only have to acquire all the IDs from the "producers", they would then have to turn around and hand them over to another group of people like the TGP/MPG/LL owners.

And since that probably ain't gonna happen, Thumb Preview sites may end up being dead ducks.

And anybody making galleries/free sites has to also have the docs for any banners, recips, counters, etc. on the page.

[Toby]

Originally Posted by tickler

Toby:
Unfortunately, that will not do anything for you under the new rules...

I'm aware of that, and if the new regs hold up in court it effectively overturns Sundance Associates v. Reno and we have a whole new ball game.

[SexVideoContent]

Originally Posted by tickler

Toby:
if the "content set" contains hardcore, it needs to be documented.

Could someone please referance where there is anything mentioned about a content set in the regs? I've seen this mentioned several times on message boards but all I've seen a referance to in the regs was individual photos, not photosets.

[Barron]

Originally Posted by SexVideoContent

Could someone please referance where there is anything mentioned about a content set in the regs? I've seen this mentioned several times on message boards but all I've seen a referance to in the regs was individual photos, not photosets.

I agree with you, the word "depiction" is singular, not plural.

But, when it comes to sets the regs say this:

Section 75.2
"Any producer... engaged in actual sexually explicit conduct in whole or part...that have been mailed or shipped in interstate or foreign commerce... or shipped or transported... or is intended for shipment...in commerce..."

If I go to the content provider, or the affiliate program and obtain depictions that are intended for commerce I have to have age docs.

Example: The content provider sells me 10 images, 5 of no explicit conduct, 5 with explicit conduct.(the regs say in whole or part) The content provider intended for all of the photographs to be used in commerce. Even though I only "publish" the 5 images of no explicit conduct I have to have the docs.

Example: I go to the affiliate program and download free content. The affiliate program shipped them to me with the intent that the depictions would be use for commerce, ie sell a membership.

I disagree with this, I only think that I should provide docs for the depictions I publish as it applies to other parts of the regs. But, can your lawyer defend that stance?

Best advice: Go with what your lawyer says.


_

[RawAlex]

Originally Posted by SexVideoContent

Could someone please referance where there is anything mentioned about a content set in the regs? I've seen this mentioned several times on message boards but all I've seen a referance to in the regs was individual photos, not photosets.

Okay, you gotta read this carefully now:

Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter that contains a depiction of an actual human
being engaged in actual sexually explicit conduct that is produced in
whole or in part with materials that have been mailed or shipped in
interstate or foreign commerce, or is shipped or transported or is
intended for shipment or transportation in interstate or foreign
commerce and that contains one or more visual depictions of an actual
human being engaged in actual sexually explicit conduct made after July
3, 1995 shall, for each performer portrayed in
such visual depiction, create and maintain records containing the
following:

The key words: contains one or more visual depictions

This is a double edged deal here. First off, if ANY part of your website is hardcore, you could be liable to have documentation for all of the images regardless of which is hard and which is soft.

Second, it can also mean that any image in the SET, because you have a model release / ID per photoshoot, not per photo. So if a girl is non-nude in 10 pictures and fucking her boyfriend in the other 10, you need documentation for the entire set because one or more of the visual depcitions is sexual.

You cannot crop a sexual picture and make it non-sexual. It is based on what is originally in that photoset.

Alex

|skyfall|

[Barron]

Commentary:


If you read my last two posts carefully you will see that I take two stances. In one post, I dont believe we should have age docs, but in the other I say we do.

As I write this post, the thread has 421 posts and 8702 views.(Is this a record?)

When you look at the two stances I took, and the number of people interested in this thread, its easy to see the new regs are so confusing that everyone is having a hard time interrupting them, even the lawyers.

This is not legal advice, this "cover your ass" advice:

1. Get a First Admendment Attorney
2. Get docs on all your content
3. Get your cross referencing database built
4. No matter what you believe to be true, want to be true, or talk yourself into believing what should be true, take your lawyers advice on how to get compliant, and have it done by June 23.

If you have to beg, borrow, steal, pick up cans, mow yards and take a temp job, get the money together and get a lawyer.

I say this for one reason only. I have regular submitters that I recognize. Its obvious that they have made the change with their 2257 statement to comply with the new regs. After several days and hundreds of posts in various threads, on various boards, they still have it wrong. If you are listening to people on the boards to get your legal advice, your getting started on the wrong foot. GET A LAWYER

Rawalex, what trooper you are. Thanks for all your help


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[SexVideoContent]

Originally Posted by RawAlex

The key words: contains one or more visual depictions

This is a double edged deal here. First off, if ANY part of your website is hardcore, you could be liable to have documentation for all of the images regardless of which is hard and which is soft.

Second, it can also mean that any image in the SET, because you have a model release / ID per photoshoot, not per photo. So if a girl is non-nude in 10 pictures and fucking her boyfriend in the other 10, you need documentation for the entire set because one or more of the visual depcitions is sexual.

You cannot crop a sexual picture and make it non-sexual. It is based on what is originally in that photoset.

Alex

|skyfall|

Thanks for the reply Alex, I agree about the cropping of a hardcore picture to make it appear softcore, that would be altering a hardcore image, however I think you're misreading another part of the statement, or perhaps we're speaking of different situations here:

that contains one or more visual depictions of an actual
human being engaged in actual sexually explicit conduct made after July
3, 1995 shall, for each performer portrayed in
such visual depiction

That would seem to indicate that this only affects the images that are actually sexually explicit, not all images from a 'photoset'.

That the model release gives the producer rights to all photos in a set has nothing to do with which of those photos - if any - are sexually explicit and are therefore subject to 2257. Ditto for the ID's. Model releases are not a 2257 form and the mere existance of a model release does not cause 2257 to be applicable, they merely indicate the model is transferring publishing rights to the producer.

So what I'm saying is, if as a 'secondary producer' I receive those 10 non-nude images you spoke of, and publish them, there is nothing sexually explicit in those images that I have published and it shouldn't be subject to 2257.

Now on the other hand if I publish one hardcore image along with those 10 non-nudes (whether the hardcore image is from the same photoset or not) all the images published on that page would have 2257 requirements.

BTW, depsite my nick, I am not a content producer so please do not think I know what I'm talking about any more than you do I just make tgp galleries - non nude ones at present, and this is only my interpretation.

[airdick]

Originally Posted by RawAlex

Okay, you gotta read this carefully now:



The key words: contains one or more visual depictions

This is a double edged deal here. First off, if ANY part of your website is hardcore, you could be liable to have documentation for all of the images regardless of which is hard and which is soft.

Second, it can also mean that any image in the SET, because you have a model release / ID per photoshoot, not per photo. So if a girl is non-nude in 10 pictures and fucking her boyfriend in the other 10, you need documentation for the entire set because one or more of the visual depcitions is sexual.

You cannot crop a sexual picture and make it non-sexual. It is based on what is originally in that photoset.

Alex

|skyfall|

"contains one or more visual depictions of an actual
human being engaged in actual sexually explicit conduct made after July
3, 1995 shall, for each performer portrayed in
such visual depiction"

IANAL, but IMHO, the phrase "such visual depiction" limits this to only the portions of the work that contain "one or more visual depictions of an actual
human being engaged in actual sexually explicit conduct made after July
3, 1995" and not the whole website, magazine, or other work.

[ardentgent]

Originally Posted by RawAlex

Okay, you gotta read this carefully now:



The key words: contains one or more visual depictions


snip


Second, it can also mean that any image in the SET, because you have a model release / ID per photoshoot, not per photo. So if a girl is non-nude in 10 pictures and fucking her boyfriend in the other 10, you need documentation for the entire set because one or more of the visual depcitions is sexual.

You cannot crop a sexual picture and make it non-sexual. It is based on what is originally in that photoset.

Alex

|skyfall|

I would seem to agree with Alex here. However, the exemption statement in 75.7 states in part that one may be exempt if "the matter containes only visual depictions of simulated sexually explicit conduct". The matter seems to refer to images or pictures and not picture sets.

[Ann Omness]

I agree with Mishi, these regulations have nothing whatsoever to do with child porn. The child porn folks couldn't care less about 2257. They're already facing long prison terms if they get caught. This is all about trying to shut down the domestic adult internet industry. They haven't been able to pass any laws to shut it down due to the Constitution, so they're just changing the rules in an existing law in such a way that it will be almost impossible for most webmasters to comply. What was lawful before will now be unlawful and they can go after all the legitimate webmasters who are unable to get all the documention ready by June 23rd. Most of us are waiting for the primary producers to get their end of things ready before we can even begin to index and cross-index all our images. And how long does it take to document and cross-index half a million images purchased from 50 different content providers and spread across a thousand websites? 30 days? A year? Does the government care that it's impossible to do it in the time frame they've ordered? Sure, they made it intentionally impossible so they can prosecute us for paperwork instead of things that involve Constitutional issues.

[RawAlex]

The problem is what is a depiction. All images that portray the same subject matter shot in the session could be part of the same depiction. While it is not clear how they slice it, the requirement to have ONE model release and ONE ID for the entire package of images basically implies that the images are together as a "work".

Model releases and 2257 info tend to be integral. You get both the rights to the images and a statement from the model that they are over 18. To fulfill 2257 you must have the required IDs. The model release is the document that attaches the 2257 items to the photoshoot in question. They are three parts of the same puzzle. When I say model release, for me there is a direct assumption that the model IDs are with it.

Read 75.7 more closely...

Alex

[Barron]

Rawalex, elaborate a little more on how the models release is relevant?


The models release does nothing more than give the photographer the right to distribute, or resell, the photography.

I know one content provider that will debate this all day and never run out of breathe.

You can own as many photos as you want, but the copyright belongs to the photographer, and the right to distribute is owned by the model.

Reference the last widely known legal challenge reported in the media. The model portraying Juan Valdez. He was awarded a ton of money.

The models release is a document that allows the photographer to make money on his/her photography useing the models image. Nothing more. If content providers were smart, they would keep their models releases under lock and key.


But, it would be interesting to hear the debate on how it applies to 2257.

_

[Barron]

Originally Posted by RawAlex

You get both the rights to the images and a statement from the model that they are over 18.
Alex

"Rights to the images." is a very true statement.

Photographers would be crazy to hand out the models release blindly. That would "imply" a transfer of ownership.


_

[RawAlex]

Originally Posted by Barron

"Rights to the images." is a very true statement.

Photographers would be crazy to hand out the models release blindly. That would "imply" a transfer of ownership.


_

Nope, you cannot imply transfer. The document clearly states agreement between "this photographer" and "this model"... all transfers beyond that are done contractually (content license or complete content sale) specified in a different document.

The model release is the place you have the model's signature, proof that the model was aware of the photoshoot, and usually proof that the model was paid (an important part of assigning rights is the recompense for doing so).

2 pieces of ID without other supporting documents would not be enough to do the job.

Alex

[SirMoby]

Originally Posted by Barron

"Rights to the images." is a very true statement.

Photographers would be crazy to hand out the models release blindly. That would "imply" a transfer of ownership.


_

I've read 100s if not 1,000s of model release documents and each one states clearly the parties involved. Just because I have a copy of it for 2257 does not mean that the agreement is noe with me.

On the other hand, the new regs require a date stamp. There's no mention that the stamp needs to be a model release. I think soon we'll start seeing a new document being used as a data stamp so the primary producers can keep the release.

[Barron]

Originally Posted by SirMoby

I've read 100s if not 1,000s of model release documents and each one states clearly the parties involved. Just because I have a copy of it for 2257 does not mean that the agreement is noe with me.

On the other hand, the new regs require a date stamp. There's no mention that the stamp needs to be a model release. I think soon we'll start seeing a new document being used as a data stamp so the primary producers can keep the release.

I agree with everything you said. But there is going to be that one dick head out there "presumes" a transfer of ownership and resell the imagery. Without a document explicitly transferring ownership of the models release, there is no transfer. But, if that person is in a different country than the content provider, getting that enforced in the courts will be expensive and very time consuming. Better for the content provider to hedge his bets.

As for the date stamp, I think your right. I'm not sure of the how or where they will do it, but content providers will need to include the date of production on the documention some where. Probably on the license, I would think.


_

[SexVideoContent]

Originally Posted by RawAlex

The problem is what is a depiction.

They're using the word 'depiction' in the singular, not the plural. They could and should have used it in the plural if thats what they had intended, but they did not do that. They haven't set aside a separate definition of the word 'depiction' in the statutes to indicate the word means anything other than its accepted meaning in the dictionary, so I'm not going to assume it means anything else. Words have meaning and I would hope the people who wrote this statute are aware of that.

Model releases and 2257 info tend to be integral. You get both the rights to the images and a statement from the model that they are over 18. To fulfill 2257 you must have the required IDs. The model release is the document that attaches the 2257 items to the photoshoot in question. They are three parts of the same puzzle. When I say model release, for me there is a direct assumption that the model IDs are with it.

I agree that when people in this industry speak of a model release, the first thing that pops in their head is probably 2257. However that is not the purpose of a model release and it never has been. Model releases existed long before the first version of 2257, it is an entirely different document that grants the producer the rights to distribute the images of the model, and a model release is used in many publishing concerns other than pornography that are not subject to 2257.

Read 75.7 more closely...

Alex

OK

Sec. 75.7 Exemption statement.

(a) Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter may cause to be affixed to every copy of the
matter a statement attesting that the matter is not covered by the
record-keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part
if:
(1) The matter contains only visual depictions of actual sexually
explicit conduct made before July 3, 1995, or is produced,
manufactured, published, duplicated, reproduced, or reissued before
July 3, 1995;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct; or,
(3) The matter contains only some combination of the visual
depictions described in paragraphs (a)(1) and (a)(2) of this section.

Well the exemption statement pertains to:
(1)Sexually explicit matter made before 1995
Not what I'm referring to...

(2)Simulated sexual conduct
I'm referring to non-nude images specifically here so that doesn't apply either (without getting into whether a hand down the panties etc would be considered 'simulated' masturbation - thats another topic)

(3) a combination of 1 and 2
Also not relevant...

I don't see how that affects non-nude images at all. It seems to only pertain to older real pornography, or simulated images.

Now if I'm misreading that, please inform me; however that seems pretty clear as to what it pertains to.

BTW I hope I'm not coming off as inflammatory here, its certainly not the intention.

[ardentgent]

Putting aside the issue of photosets that may contain harcore images even if one is using softcore images only from that photoset, does one need a compliance statement or exemption statement if the site containes no images of conduct as specifically listed in 18 U.S.C section 2256 (2) (A) through (D), but are merely depictions of non-sexually explicit nudity?

[airdick]

Originally Posted by ardentgent

Putting aside the issue of photosets that may contain harcore images even if one is using softcore images only from that photoset, does one need a compliance statement or exemption statement if the site containes no images of conduct as specifically listed in 18 U.S.C section 2256 (2) (A) through (D), but are merely depictions of non-sexually explicit nudity?

No.

From what I can tell, the regulations state that you may include an exemption statement for "actual sexual conduct" (defined in 2257(h)) that predates the regulations, or simulated sexual conduct, or a combination of the two:

"Sec. 75.7 Exemption statement.

(a) Any producer of any book, magazine, periodical, film,
videotape, digitally- or computer-manipulated image, digital image,
picture, or other matter may cause to be affixed to every copy of the
matter a statement attesting that the matter is not covered by the
record-keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part
if:
(1) The matter contains only visual depictions of actual sexually
explicit conduct made before July 3, 1995, or is produced,
manufactured, published, duplicated, reproduced, or reissued before
July 3, 1995;
(2) The matter contains only visual depictions of simulated
sexually explicit conduct; or,
(3) The matter contains only some combination of the visual
depictions described in paragraphs (a)(1) and (a)(2) of this section.
(b) If the primary producer and the secondary producer are
different entities, the primary producer may certify to the secondary
producer that the visual depictions in the matter satisfy the standards
under paragraphs (a)(1) through (a)(3) of this section. The secondary
producer may then cause to be affixed to every copy of the matter a
statement attesting that the matter is not covered by the record-
keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part."

Additionally, the following comments from the DOJ were published in the Federal Register along with the new regulations:

"One commenter commented that the exemption statement in the rule is
unnecessary and redundant because if no statement is necessary, then
the regulation does not apply and no statement of any kind can be
required. The Department declines to adopt this comment for three
reasons. First, the Department notes that the exemption-statement
requirement was included in the previous version of the regulation.
Second, the commenter is wrong to state that it is redundant. Since a
primary or secondary producer could possess various sexually explicit
depictions, some subject to the regulation and some not, it would be
necessary for the producer to label both types, rather than only label
those that are subject to the rules and give the impression both to the
public and to government inspectors that the producer is not in
compliance with the regulation. Third, the lack of an exemption
statement could lead to a waste of resources by prompting inspections
where none were needed because, unbeknownst to the inspector, the
producer was exempt from the regulation."