The partial granting of a preliminary injunction in the Colorado FSC case was mostly good news. A few points were won, a few were lost, and the Judge included a lot of hints as to how he will rule when this case really goes to trial.
FSC argued that §2257 itself is unconstitutional in that it infringes upon Free Speech rights so the whole thing should be thrown out. The Judge shot that down saying, “…Plaintiffs do not provide convincing evidence that the impact of the statute and regulations effectively ban sexual expression.” Those are strong words, and that indicates to me this Judge is not going to change his mind when trial time comes! He also states, “…I agree with the Sixth Circuit’s finding that “[t]he government’s goal of preventing child pornography through the record-keeping provisions of the Act clearly do not attempt to regulate the speech of {Plaintiffs} because of disagreement with messages they convey.” And “Plaintiffs do not convince me that the statute and regulations do not advance the government’s interest in preventing child pornography.” That means to me that it is highly unlikely that 2257 will be overturned at the trial court stage.
However, the Judge did find that the regulations were over-burdensome as applied to chat rooms and keeping URL’s from other sites that you don’t control. He states, “Particularly with regard to the circumstance of the chat room, a narrow tailoring may well require no more than the identification of the performer as otherwise prescribed without the necessity of maintaining a copy of the entire time of depiction.” He doesn’t give real direction as to what to do from here, however.
Next he finds that trying to maintain URL’s from websites you do not control is overly burdensome—which means that if you put up a pic, you are not responsible for logging all the URL’s of all your affiliates that put that pic up too. You are still responsible for URL’s from your own websites, which is still a huge burden. The Judge doesn’t see it that way yet.
Some REALLY good news, which validates what I have quietly told clients for the past few months—You can redact model IDs!! “[DOJ] notes that there is no reason why the address on ID cards could not be redacted to protect the performers’ confidential information, including address, actual day of birth, social security number, etc.” So anyone that feels obligated to send out model ID’s with their content should take the time to pixilate or black out that information from the model IDs.
The Judge also agrees that there is no reason why anyone outside the 10th Circuit should not have relied on the Sundance case, “I disagree that Plaintiffs acted unreasonably by relying on the decision of the one court of appeals that has directly addressed the issue.” There are lawyers that advised their clients not to rely on Sundance, and lawyers like me that told their clients it was OK to rely on Sundance. We all make mistakes.
Here are the things I find very troubling:
The Judge does not think that keeping a copy of every depiction is overly burdensome. “Plaintiffs have not met the preliminary injunction standard to show a substantial likelihood that the requirement to keep a copy of each depiction is overly burdensome”. This is not good. This means that all producers are still required to keep a copy of every depiction. Luckily this only applies to the “primary producers” EXCEPT live web cam sites. Live web cam sites don’t need to keep a full copy of the time the performer is on; for now, just an ID.
I am also concerned that the ruling is worded to apply only to FSC members. While preliminary injunctions only apply to the parties of a suit, one of the parties here is the DOJ. The DOJ must treat all persons equally under the Constitution, so constitutionally even though the Judge’s language only protects FSC members, the Equal Protection language of our Constitution says the DOJ cannot enforce those provisions against a non-member while ignoring a member. The FSC deserves to use this victory in its membership drive, but it should not deceive people by telling them they are not protected unless they are members of FSC. In reality, this ruling does protect everyone.
The drawback is that even though there is an injunction, it only prohibits enforcement of a small portion of the 2257 regulations. The rest are intact and enforceable.
So, there is a little good news, but 2257 is still alive and kicking. This is not time to let your guard down or stop keeping records if you are taking pictures or video.
http://www.avn.com/index.php?Primary...tent_ID=252970