2257 Ruling--FINALLY

[chadknowslaw]

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

[Chop Smith]

Chad, thanks for posting your opinions.

I just had to capture a section of you post. "The sky is falling on all non-FSC members" fund raising tactics caused lots of friction on this board.

Originally Posted by chadknowslaw

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.

[chadknowslaw]

Originally Posted by Chop Smith

Chad, thanks for posting your opinions.

I just had to capture a section of you post. "The sky is falling on all non-FSC members" fund raising tactics caused lots of friction on this board.

The FSC uses outright deception and mafia-like protection tactics, in my opinion.

[Bill]

Thank you Chad, we appreciate your expertise.

What's your practice specialty, in case any of us ever needs your services?

[Surfn]

Anyone for a 3rd thread on this topic?

[chadknowslaw]

Originally Posted by Bill

Thank you Chad, we appreciate your expertise.

What's your practice specialty, in case any of us ever needs your services?

I do mostly transactional work like writing contracts, model releases and corporate formations, but also some copyright enforcement. All of my practice is with adult internet companies.
I spent 4 years as an elected DA and then two years with a real estate title company before going into private practice, and adult business since 2003. Mine is just a small office but it seems to be just the right size for me at the moment. I love the freedom of not working for someone else!

[Bill]

It sounds as tho the secondary producers are pretty much relieved of the record keeping burden on the new 2257 changes, tho, does it not?

That this is essentially very good news for the advertisers and publishers who only license content and have no involvement with production.

[plateman]

bill thats what I was gonna ask - so has anyone have anything clear for us webmasters to grasp, it would be nice to know if we are still under the scope..

[chadknowslaw]

Great news--

"Secondary Producers"

ARE OFF THE HOOK!!!


for the time being......

Trouble is looming, though, because I have heard rumblings that some do-gooders are working in Congress to change the statute to include secondary producers. This ruling will only encourage them. The biggest FSC argument was that only Congress could re-define producers to include webmasters, not the Attorney General. So, we could win the court case but then have Congress change the statute and be fucked all over again.

HOWEVER<

The Straight Forward Legal-Trained Answer to your Question is:

YES! Secondary Producers are relieved of the record keeping burden!



Hell, I forgot to charge ya'll. I may lose my law license if I keep giving straight answers for no money.

[Mr. Blue]

Honestly, eventhough this lets secondary producers off the hook for now, I'm not really changing my way of doing business regarding content, the use, and the purchase of it, etc. I made the changes and I'm probably going to stick to most of the changes so I'm never caught without the proper records. There's always bible thumpers looking to screw over the adult industry and there's no way I'm going through the sky is falling shit again.

Originally Posted by Mr. Blue

Honestly, eventhough this lets secondary producers off the hook for now, I'm not really changing my way of doing business regarding content, the use, and the purchase of it, etc. I made the changes and I'm probably going to stick to most of the changes so I'm never caught without the proper records. There's always bible thumpers looking to screw over the adult industry and there's no way I'm going through the sky is falling shit again.

Sensible post.

The good news is that Secondary producers are not burdoned with the exacting requirements of the cross referencing and record keeping.

But to say this allows them to publish porn without ANY proof the porn is legal is beyond crazy.

[Servhot]

Looks like some good news for the US biz. But, was this now the last word on it, or will the story move on?

[Papa]

"Secondary Producers"

ARE OFF THE HOOK!!!


YEP !
But, trust me, there will be day when...........

Anyways, you folks US based shouldn't mess around. I think they are really serious about this hole bill

[SirMoby]

Thanks Chad. Your information is always weclome. Every take a big sigh of relief for New Years. When congress gets back in session this law will change. They'll add it as a rider to something critical like money for troops and no one will have a chance to speak about it.

My guess is that before Q2 we'll have another battle.

[ardentgent]

Ok. Secondary producers are off the hook at least for now. So please refresh my memory, what kind of 2257 statement is required of secondary producers on the galleries we make and what records to we have to keep.

Thanks.

[chadknowslaw]

Continue to provide the 2257 data for the producer where you got the content. I should be able to go to your site, point to an image, and you can point me to the 2257 Custodian information for that image.