Actually, 18 USC 2257 applies to foreign producers as well, so moving your business offshore or operating outside the United States, while it may solve certain problems, will not solve your 2257 headaches.

According to 18 USC 2257 (a)(1) and (2), the statute applies to "Whoever produces any book, magazine, periodical, film, videotape, or other matter which ... contains one or more visual depictions made after November 1, 1990 of actual sexually explicit conduct; and ... is produced in whole or in part with materials which 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;"

In other words, assuming the depiction is one covered by the statute, once it is put into interstate or foreign commerce, it is covered under the statute and the record keeping and custodian statement provisions apply.

The problem with a 2257 prosecution is that's essentially strict liability - you either violate the statute or you don't. The jury ultimately decides only issues of fact - whether or not you actually maintained the records or posted the appropriate disclosure, etc.

Once that's decided, the judge interprets matters of law, including sentencing guidelines that include any minimum sentence. And the gentle folks at the federal government, you'll recall, just upped the sentencing minimum for 2257 violations from 2 years to 5 years in the Protect Act last year.

Your tax dollars at work...

[Michael (mccoymg) is the the General Counsel for my company Cydata Services, which operates 2257lookup.com and also runs his own practice with adult clients and deals with 2257 issues.]


An issue that keeps coming up is about foreign content producers and their 2257 responsibilities.

Your answer points to the fact that foreign content producers are responsible, but what are the ramifications if they don't have proper documentation, if in their own country they don't have similar 2257 requirements, and doing business in the US?

What liabilty is there for webmasters under the current and proposed 2257 statues on their liabilities if licensing content from a foreign content producer that doesn't have proper 2257 documentation?

Lastly, what happens after 90 days of the public review of the proposed changes? Does Congress vote on it? Does the President have to sign it?


-brandon

My reply was directed at the scenario of a domestic producer trying to take his business abroad or "go offshore." The problem with this is that, to the extent an American national is involved, the "foreign" producer will fall under the statute and records will need to be maintained and custodian statements affixed.

The issue of a domestic webmaster dealing with a 100% foreign company, i.e. absolutely no domestic investment whatsoever, either through a holding company or any other ancillary device, is more complex. Opinions vary whether the completely foreign producer is responsible for the record keeping provisions. The statute has never been tested and although the general rule is that non-citizens are not subject to the rule of US legislation, the jurisdictional question is unsettled, extremely complex, and subject to a number of variables.

One thing that is clear, however, is that the domestic webmaster would still be responsible for the affixation of the custodian of records disclosure, since they are clearly placing the depictions in interstate commerce. The problem arises, of course, that they may receive incomplete documentation or no documentation at all from a foreign provider.

Secondly, depending on the type of content, there is the issue of how "close" the webmaster is to the production of the content. That is, in the case of custom ordered, exclusive content from a foreign source, the webmaster is more likely to be deemed a producer of the material and subject to the statute.

Third, separate and aside from a 2257 analysis, even if a webmaster's content source is not subject to any record keeping regulation, it is a terrible idea to display content for which there is no age verification procedure. In the case of foreign content, you may get little or nothing in the way of records. What if just one of those images contains an underage model? It is extraordinarily dangerous to use content in that instance, and yet another reason webmasters should only license content from a reputable source.

Interesting reading in this thread.

My first comment is that people with video content should be looking at DRM... it would seem to me that the nature of DRM will create compliance with certain parts of this whole thing automatically.

DRM won't help 2257 compliance... DRM is mainly about protecting from piracy.

If people are putting their video out on P2P using DRM, then there are many things that one has to understand about current and proposed 2257 statutes.. like having the proper documentation.

Whether with videos or images, if the prosecutors come knocking and asking for 2257 records, one needs to be able to comply.

Video content should be protected with DRM to keep people from stealing the content.

-brandon

The DRM and P2P notion brings out a good point, how does one track the URL for the new purposed of the regulations when the file is literally spread across thousands or millions of people's P2P servers?

What Ash hahahahaha is trying to do is look good for his voters. This is an ammendment to an existing law, a tightening up. It passes around August, the election is November 2nd.

So reckon Ashhahahahaha is going to be very active with these new powers around September to November 1st. He will want lots of reasons for people to go out and vote for him.

He's not likely to get our vote, he looking to shore up the right.

Go ask a lawyer what you should do.

Just had a client on ICQ, it seems they lost all their 2257 documents. Not the content just the documents????? They also do not know which sets on their site are from us, so the 2257 page listing the Custodians is pretty innefective.

So can I go to my records and check what they bought and send them the documents. While I applaud their actions to get compliant I have to wonder what happened with the documents.

I now have a few hours work to cover their arses, due to their negligence. They are good clients so what should I charge them for this service and what should I do with guys who have not bought for a year?

So what does this mean for a Canadian webmaster with hosting (and therefore servers) that are located in the U.S?

someone else said it, but it was in the middle of paragraphs, so it's worth mentioning on it's own...

banners have photos on them, and therefore would also need i.d. to be legal under this law.

This is an important issue, I'm glad Gary has brought this up.

Agree... the best thread ever... learn, learn and learn:thumbsup

This thread is heavy......

Going slightly off topic:

A video file that is sexualy explicit that is wrapped in DRM and distributed on P2P opens up a big liability front. Your video file may end up in a "hostile zone" in some West Virginia town like Extreme Associates case, and the DA there decides that your material is obscene and that it was imported into his district.

Websites have an advantage, but not exactly full protection, that there could be limitations and disclaimers as to where the content can be viewed, age verification ,etc.

With P2P, it's wide open and given the RIAA and MPAA focus on trying to shutdown P2P based on their belief that child p*rn is being used on P2P, it wouldn't be too far of stretch to think that prosecutors are watching the P2P scene.


Going back on topic:

Probably the best way to deal with video 2257 compliance is to include a URL to the 2257 info on the video.

So for every video clip, put in the URL with some kind of 2257 compliance statement at the beginning of your video clip, and this should keep you out of trouble.



-brandon

You need to comply with 2257.


-brandon

Here is a question , they passed this. They grab you because some pics from a promo pack swap you dont have 2257. The model in question is in her 30's and looks it. How are they going to get a conviction? They tell the jury we are protecting children and there is the pic of the 30 yr old behind them. I cant see it , I think all the teen sites are going to have to get militant about this.

Interesting scenario... while the premise behind 2257 and especially the new proposed changes is to "prevent children from being used in sexually explicit production", the real intent in my observation is to use 2257 to shutdown p*rn.

So when they pick on an easy target that doesn't have any 2257 statements or records, they won't need to show the jury that the model was an adult, they just show that the webmaster failed to comply with a federal statue, thus committed a felony.

It really is scary where this is all going....something that I have been hearing from attorneys on conference panels.... and now that the Attorney General has 2257 on his agenda, it's a tool to further the agenda of removing smut.



-brandon

I've just read through the entire proposed rules here: http://www.regulations.gov/freddocs/04-13792.htm

... and there is NO WAY the typical adult webmaster can easily keep the records in the manner in which they are going to require.

This isn't as simple as printing out the ID's and then filing them away in a folder. They want everyone to have actual computer databases containing the following...

- full model name
- maiden name
- nickname
- alias
- government issued ID
- URL's of every individual photo you've got online
- every "stage name" the model has ever used
etc...

It's crazy.

And they say nothing about secondary producers (paysite owners, affiliates) being able to keep censored out ID's where the home address isn't visable.

I have started a 2257 FAQ at:
http://www.2257lookup.com/2257ForWebmasters.html


Since there are alot of great questions being asked on various boards, I have pulled them all together on one page that i will continually update.


-brandon

Wrong.

DRM is the single best protection a video can have. DRM, by its nature, also falls right into natural compliance with the new rules.

Since DRM is customizable to so many levels, you, as the license server for the DRM, could decide to disallow IPs from any region -- West Virginia, Pittsburgh (where the Extreme case actually is), Los Angeles, you name it - you would simply deny the license acquisition based on the users IP address matching a database you wouldn't serve. If the license will not authenticate, then the user cannot view the video.

It doesn't get much more simple that that.

If you don't like Microsoft, use DIVX for your encoding.

By encoding a file into DRM format, it doesn't automatically add the 2257 information.

You have to type that information into a field that can then be embeded.

DRM does provide for a nice easy way of identifying the 2257 info, it still requires work to do it. (DRM is a great solution for protection against piracy).

For those that don't use DRM, you could include a 2257 statement at the beginning of the video.

Think DVD and VHS... those don't use DRM, but are affected by 2257 statue as well, and they display the record keeper information at the very beginning of each clip.




-brandon

At Lightspeed Cash we are very agressive with our 2257 information. Every set of photos is given and ID number, printed up, and stored with the proper model release form. Copies of the model's ID is also stored with this information.

If any law enforcement agency was to contact me about a certain photo, I would be able to identify the model, and provide copies of model release form "instantly".

Not true, once the new law goes into effect (if it does) then from that day forward you would have to be compliant.

I just got feedback from a webmaster who got a response from his attorney that having blackened out ID's won't cut it....

If the webmaster is required to be in possession of the full driver's license, then that's a serious privacy issue and a safety issue for the models.

I'll post up what responses I can get from legal folks about this.


-brandon

The problem is that the new 2257 regulations require the webmaster to have 2257 documentation.

So if the prosecutors knock on LS door, you guys are all set to answer their questions.

if the prosecutors knock on a website that has LS pictures and the webmaster doesn't have the 2257 docs, then they go to jail.

This was the interpreted understanding of current 2257, the new regulations make it more defined and add way to many additions that is impossible for full compliance.


Content producers and webmasters should be voicing their opinion within the 90 day public hearing time and send email to voice their thoughts.


---------------------------------------------

Written comments may be submitted to: Andrew Oosterbaan,
Chief, Child Exploitation and Obscenity Section, Criminal Division,
United States Department of Justice, Washington, DC 20530; Attn:
``Docket No. CRM 103.''
Comments may be submitted electronically to: [email protected]
or to http://www.regulations.gov by using the electronic comment form provided

on that site. Comments submitted electronically must include Docket No. CRM 103 in the subject box. You may also view an electronic version of this rule at the http://www.regulations.gov site.





-brandon



ps. you may want to send your opinions via web-based email so that your website address doesn't popup on their list of websites to check out.

If you had the records and could match them up a lawyer would crush this in court. No way in the world could they inforce and win on every single thumbnail on your site having to have an instant match.

Their is leased content, banners, promos, etc.. It's 100% impossible to stay up on it like that, even more so when you have 1000's of domains and peoples content.

As I said, a good lawyer would crush them in court with this.. Just because it's a law right now doesn't mean they can win the case.

"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)."

This is pretty clear, if I purchase content, leased content, etc. I do not have to provide the 2257 information about each person within that content.

I'm not producing or publishing the content. I'm only distributing the content, which does not involve directly working for that company.

You are missing it then. See gkremen's first post that has the cliff notes version of the full document.

If you don't believe my interpretation, that's fine.. please show your attorney these new 2257 regulations and have him interpret it for you and then post back here so you can correct me.



-brandon


ps. I have already checked with my attorney.

I read the whole thing, it's pretty clear cut.. If you fall into the category of being the producer of the content you need to have some solid records and your shit together.

If you are a TGP webmaster you are not the producer or manufacture. You did not publish it in any form. And seeming you don't work for the company that did produce it you do not fall under duplication, reproduction, or reissuing of the content.. At this point you don't fall under this regulation and nothing below applies to you.

Perhaps you should read my reply to this cut and paste on the first board you pasted it on.

As I say, I realize that you have a vested interest in all this, with your new product. I've stated repeatedly that images do NOT have the same simple solutions as video content utilizing a DRM product.

However, from the standpoint of producing and distributing VIDEO content on the web, DRM is the most effective solution to these changes.

Do some research and then come tell me about the things DRM can actually do.

DRM may help some, in keeping them away from if they see who produced the content. It does not protect you from the regulation in anyway. It clearly states that you must have a hard physical or electronic copy of the actual depiction with the identification and age files if you produced the content. DRM doesn't do this.

Actually Section 75.2 does align anyone with a web page into the secondary producer category --

(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, a computer-generated image,
digital image, or picture, or other matter intended for commercial
distribution that contains a visual depiction of actual sexually
explicit conduct, or who inserts on a computer site or service a
digital image of, or otherwise manages the content of a computer site
or service that contains a visual depiction of, actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing.

--------------------------------------------------------------------

By putting an image on your site, you are definitely reissuing the content and the inserting verbiage pretty much reiterates it.

Please explain to me the following since you seem to know more about DRM then me:

If a wembaster licenses video content from a video content producer who uses DRM, how does the use of DRM solve the problem of the webmaster (the secondary record keeper) of having model ID and model release info under the proposed 2257 regulations?


-brandon

No, sorry that isn't how it works.

If I write a book, you distribute the book, and a store sells the book, lets say I'm saying the book is true fact and it's not. The store doesn't get into trouble, the person that sold the book and distributed the book does.

That is what that paragraph is saying, you can't take one section of the regulation out of context you have to read the whole thing.

"A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, a computer-generated image, digital image, or picture, or other matter intended for commercial distribution"

A TGP webmaster doesn't do any of the above.. This is talking about people that produce the content and people that resell, produce, duplicate, etc that content. Nowhere does it say display.

It's actually fairly simple.

And I'm going to cut and paste my answer from another board here so I don't have to type it again :)

Keep in mind, yet again -- this doesn't work for images, not unless you wanted to change your entire operation over to .asp, which is the only image DRM function Microsoft offers at this point. I don't know that DIVX or REAL etc have anything for images either.

After consulting with 3 DRM programmers as well as 3 attorneys, this will most likely satisfy the requirements of the new rules technically, for video only.

The easiest, and most effective way to do it and be able to keep it updated is to initiate an html call from a window popped through the DRM laws the first time a user -- defined by any number of unique identifiers -- views the content. The user then has the ability to click the 2257 link and see the information if they so desire. Rather than embedding the information in the encoding or the DRM, you host the 2257 information on a separate (segregated per the rules actually) server. When the license acquisition request is made, the DRM also knows exactly where that call originates, be it an IP in the case of P2P, or a url in the case of someone displaying the content on their site. These files are logged and should (keep in mind I'm not a lawyer but we've had 3 look at it so far) satisfy the cross indexing requirements. Thus, if an inspector came to your business, you could immediately produce the records they want, and by having the 2257 come in the process of an html call from a separate server, you can update the 2257 records any time you need to and they will be globally changed, you wouldnt have to go back and re-wrap, or God forbid, re-encode, the video in order to be current.

One could figure that if the government were looking at say, 5 sites, of equal size in revenue (or what they assumed to be equal), the ones that are the most comprehensive in their record keeping would be the last ones they would want to take on, especially if some of the targets were obviously using what they consider to be sloppy methods of record keeping

I'm most definitely with Brandon on this one, since the moment this came out the other day, one of the very well known net lawyers called stating it does work that way.

"who inserts on a computer site or service a
digital image of, or otherwise manages the content of a computer site
or service that contains a visual depiction of, actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing."

If a TGP webmaster takes content and creates a page with it, then they become a secondary producer.

I'm sure the government has no clue what hosted galleries are, which would seem to me to be the exception to this rule, but I know this much -- I wouldn't want to be the one telling an inspector who came to my business that I had no records. Nor would I want to be the one footing the legal bill for the first case that comes out.

You are taking the word "publish" too literally. In the legal realm context, publish would mean putting a picture up on your website.
By allowing others to view the images, you are "distributing".


Answer these questions for yourself:

1) Do you show sexually explicit images (see 2256 definition) on your TGP?


2) Are there sexually explicit images physically located on your hard drive?



If you answered yes, then you do have 2257 issues.

You should really have your attorney weigh in on your specific situation given what has been proposed: http://www.regulations.gov/freddocs/04-13792.htm



-brandon

This would help for sure, but you can't display a person?s private information on that page. The hard or electronic record has do have DL, contract, etc, etc... This only helps direct them to the proper owner/distributor of the content and doesn't protect you from the regulation. This is a good way for paysites to help keep control of who owns the content though if anyone wants to know.

There's nothing that prevents you from having a dual layered data system on that server. The surfer would get the information as to the custodian of records, an inspector that came to your business could access all of the data from a secure connection inside your business.

The folks I am dealing with have always kept a separate computer in their office to handle 2257 requests, and adding a bit of online functionality to that database won't take more than a day or two :)

I understand all that you have written, but it still doesn't answer my question.

2257 requirements for secondary record keepers (webmasters) says they must have the model ID and model release info at their location.

The 2257 html page that pops open when the USER views a video is fine and is a great way to display the primary record keeper;s location, rather than embedding it into the video or the attributes of the video (sometimes people move and change locations).

What the process you have described does not cover, is the fact that the video content producer would need to give the webmaster the model info, which would NEVER be displayed on any HTML page.

These records are to be held in the event that a prosecutor has requested the information.

DRM may help to LABEL the primary record keeper;s address, which is the same displaying it on the actual video, but it does not solve the compliancy issue for the webmaster of having the actual records.


The new 2257 regulations have made significant changes to the way things used to be done.

Is the explanation that you received from the 3 attorney firms taking into account the new 2257 regulation changes?



-brandon

Brandon wrote:


the regulations say you must have an identification document and if that identification document (such as a birth certificate) doesn't have a picture ID then you must have a "picture identification card"


as proposed
75.1[b] "Picture identification card means a document issued by the United States government or a political subdivision thereof, or a United State territory that bears the photograph and the name of the individual identified, and provides sufficient specific information that it can be accessed from the issuing authority, edge a passport issued by the United States or a foreign country, driver's license issued by a State or the District of Columbia, or identification card issued by a State or District of Columbia."

I'm not a lawyer but upon my reading of that the picture identification card must meet 3 criteria
1) have a recent and recognizable picture
2) contain the name of the individual identified and
3) provide sufficient specific information that it can be accessed from the issuing authority

blacking out the address would not affect any of the required features of the document.

I'm out for some family time, but I'll have a look at this thread later.

Discussion is good on this, since there are many separate sides to the problem, and what works for one instance won't necessarily work for another.

I'm not sure how many of you recall a couple of years ago when some site owners were accused of using underage models by Katherine Graham when she was running for governor of Michigan -- but at the end of the day even if none of them were guilty, she got a ton of publicity for her campaign over it and they had to spend to defend themselves, right or wrong.

The date on this order is June 14th, and it was filed on June 24th. This means that by October 24th, some form of this can be signed into the system and that with a week or so to go before the elections, some people can use this to generate publicity in that same way.

I'll put it this way and then I'm off to the beach. It's entirely possible for video to be handled this way and satisfy the requirements of the new rules.

If the producer, either secondary or primary, who has the actual documents, uses this system, it would be able to satisfy the requirements. If you don't have the documents, then you really can't protect yourself in any way, shape or form, now can you?

We have a common middle ground now in our discussion...

DRM does provide a good way to display to the surfer the custodian of records (primary record keeper), which satisfies the content producer's responsibilties.

Having records of the model releases on site as a webmaster, would go towards satisfying their secondary record keeper responsibilities.



-brandon

You assume that it means to display, if distributing ment display then it would say that.

In the magazine world, vhs/dvd's, etc.. Distributor isn?t the store the sells them, it's the person that sold it to the store. The store is the merchant.

-- If person (1) shoots the content he needs 2257 info

-- (person 2) If they sell/give the content to a person that
cleans/duplicates the content he needs 2257 info if it's a different business.
-- (person 3) If that person sells/gives it to a distributor that will sell the vids/pics then he needs 2257 info.

-- If the PAYSITE owner which purchased the content from (person 3) does not sell it to another company/person and only displays it and sells it as a merchant then he does not need 2257 information on each model. Even though it would be smart of him to have it.

-- If a webmaster (non paysite owner) gets the content from from the PAYSITE owner he does not need 2257 info on each model. Even though it would be smart of him to display where he got the content from.

I'm not looking to deep into who a distributor is, I'm talking about what the legal term used for distributor is. A distributor is not a merchant.

The new regulations say a secondary producer is one who "manages the content of a computer sit or service" and that is defines as "means to make editorial or managerial decisions concerning the content of a computer site or service"

Are you making editorial decisions about what content goes on a website? Then you are a secondary producer and YOU must keep copies of the IDs and cross reference everything.

in my laymen understanding and reading of the definitions, I agree with you.

I am sure i will find varying degrees of answers from attorneys on this very issue, since it's still a gray area...

I think that if you are showing intent to comply with the law and have been given ID that has been blacked out, then until the statue is clearly defined in regards as to what is proper identification, this measure atleast offers some defense for webmasters and content producers.

I know of several content producers who already do this.

-brandon

Then you are considered a "secondary producer," who must keep exact copies of all model info. Read it again.

I just wanted to clarify since additional posts were made while I was editing my last post. I agree that a TGP operator should be classified as a distributor since they don't make any editorial decisions about the content (assuming they really DON'T make any editorial decisions about the content).