FightThisPatent

The DOJ is doing 2257 inspections right now on primary record keepers.

They haven't picked a secondary record keeper at this point, but it would seem that they could test the waters with one, given Ashcroft's 2257 changes and now HR4472.

If you are a primary record keeper (ie. you shot the content or had some shoot it for you), be sure to have all documentation (the right documentation) and be compliant with this 11+ year old law. By now, anyone who is a primary record keeper should have already gotten their records together, if you haven't, shame on you and get moving on it by contacting an attorney who understands 2257.

If you are a secondary record keeper (ie. paysites, affiliates, etc), then you could dive into the details of this by reading the stories up at FSC: http://www.freespeechcoalition.com

or, you can simply be sure to have renewed your FSC membership, or join FSC.

FSC members who are secondary record keepers would be exempt from inspections.

There is no need to be thinking of taking down content or moving offshore. The litigation with FSC is ongoing, and has a good chance of knocking down the secondary record keeper requirements. Should that fail, then you will know the sky is falling, until then... don't panic!

Join up with FSC and sit back to watch how this all will play out. Your alternate choice is to overreact and pack up shop, which I have seen from various threads.

For those that have "issues" with the FSC and feel this is all a scare tactic to become members, i would say first off all, be sure to use a really sharp knife to cut off your nose, it will be quicker and less painful. Secondly, FSC is the trade association that represents adult businesses, as evident by their lobbying efforts in Congress and the various lawsuits it has filed (and won).

If 2257 is the only reason you are joining, then you are missing the big picture reason for what FSC does for you and your business.


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CDSmith

For those that want the CLIFF cliff notes, there it is.

The "gist" of it, if you will.

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FightThisPatent

hahahahahha.. i can never write short posts.

Thanks for the cliff note of the cliff note.


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seeric

the sky is falling


the sky is falling


the sky is falling

spacedog

you forgot to mention that joining now wont do jack shit for anyone.,,, The injunction only protects members existing at that time, not any new members who joined after the fact... correct me if I am wrong..

MrPinks

I think you are correct and only members in that district

FightThisPatent

you are being corrected.

The injunction covers all FSC members, that's why they released a prepared statement that if DOJ knocks on your door and you are a secondary record keeper, then you can show them the printed page. Its a PDF on the front of http://www.FreeSpeechCoalition.com


Fight the members only!

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looky_lou

I think you are correct, however if you do join you will be part of any future injunctions as well as helping to support the industry effort in lobbying in Washington and other legal efforts to protect our industry.

What is any other organization doing to protect your rights within this industry?

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spacedog

so, if I join today, & three months from now I am asked for an inspection & have no documents for any affiliate program, then nothing happens?

tony286

FSC has to fire their lobbying group seeing the laws paased in recent days ,they are doing shit. It will be interesting if the FBI goes to a secondary processors door and the secondary says Im a member of the FSC, if they go away or not. If you look at the 2 nd inspection going thru the whole house, which isnt included in 2257, I wonder if saying Im protected by the FSC is going to work

CaptainHowdy

Great info !

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crockett

Is it 100% positive that the current FSC challenge will cover the changes from 4472 to 2257?

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FightThisPatent

yup, as long as you are a member, and you show them the document that FSC produced for its members should they be inspected.


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Thee Johnclave

Did it not dawn on you that he likely allowed them to search his entire house? It is undoubtedly not part of 2257 but if he allows it, be certain they'll do it.

The law that was recently passed is a good law which has nothing to do with 2257; with the small exception that the amendments were backdoored in. It was a blindside shaddy move. The FSC has been very successful with 2257 thus far though I'm sure they'd be happy to have your expertise join them on the courthouse steps.

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FightThisPatent

well, 4472 and 2257 both target the secondary record keeper requirements, which is being challenged.. AND, FSC is challenging 2257 as a whole (including primary record keeper requirements).


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tony286

Ever think he didnt know his rights? Were you there that you know he allowed it.Sounds like they strong armed into the house and did what they wanted. As far as the FSC, Im a member and as a primary producer they havent done shit for me.

pornguy

By Case Law, that is not true.

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FightThisPatent

They are covering that issue (of primary record keepers) in litigation.. the case isn't over and no ruling.



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pornguy

Sure they did Tony. they took your money.

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Linkster

More importantly - this thing doesnt even become law until its published in the Federal Register 90 days after the signing (at least the way section 5 reads) and that is the standard process for any new law.
While I am a member of FSC, I am kinda wondering why there were no lobbying efforts during the committee process for this bill - this was not an amendment backdoored in - its a good percentage of the primary bill.
Seems to me that was one of the points of supporting the FSC???

Also the last word I read from the FSC releases was that even if you join the FSC in the future you would be covered under the injunction - although there is also the added feature of the injunction that covers all "secondary producers" - not just FSC members if you read the injunction.

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CE_Rashaan

I'm not 100% sure about any of this but this is my take on it.

4472 makes any person who displays adult content on the web on or after the 27th a primary producer and thus responsible for having the neccesary 2257 documents. FSC's injunction is applicable to 2257 but not 4472.

I'm not 100% sure about any of this but that is my take on it

pornguy

Thank god for case law. I hate to point this out, but because of past case law, we are ALL covered under the injunction. NOT just those of us that paid the FSC. And I have to say that I was pissed when I heard them say that it did not cover those that could not, or did not pay.

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galleryseek

dude stop that annoying "Stop This ____!" "Stop That ____!" crap at the end of your posts...

not everything you say has to have a fucking slogan attached to it.

CE_Rashaan

4472 has changed the status of secondary producers to primary producers regarding any material posted after the laws enactment. FSC did lobby against this law and has had info up on there site about it for sometime. All in all it's kinda hard to fight a bill named after John Walsh's dead son and no matter what happened it was gonna get signed in on the anniversary of his death. That's why they "porked" it up, they knew it would breeze through and nobody in the house or senate was gonna make a big stink about the bill being stuffed with extra shit concerning porn on the net. I doubt there will be any filing against 4472 by anybody. Basically if you shoot it you better have the records if you buy it you better get the records or your fucked.

Oh yeah, FYI... if you joined FSC last year you were smart to do so. The 2257 injunction covers only FSC members (unclear about if you had to be a member before the deadline). Sure the fact that there is in injunction on the statue could set prudence in court...but that doesnt make you exempt from inspection for 2257.

pornguy

Sorry to say, but this " The 2257 injunction covers only FSC " is NOT legal.
If that were so, then acacia would be getting paid by a LOT of people that were not involved with the suit against them.

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pussyluver

Wanna expand on that? Not 100% sure of what you are saying.

I can see an argument against FSC being a protected group, but not the whole even though there is an agreement in place.

pussyluver

Thanks Brandon for what you've done and brought to the industry.

pussyluver

Let me rephrase that.

Maybe an argument could be made that the whole group as in all the secondary producers (affiliates etc.) should be protected, not just FSC members even though the FSC filed the litigation or have a court ruling pending final decision.

BV

Can you clarify this because I dont even see a section 5.
Sec 502 (includes lascivious display into 2257) states quote:

The provisions of section 2257 shall not
apply to any depiction of actual sexually explicit conduct as
described in clause (v) of section 2256(2)(A) of title 18, United
States Code, produced in whole or in part, prior to the effective
date of this section unless that depiction also includes actual sexu-
ally explicit conduct as described in clauses (i) through (iv) of
section 2256(2)(A) of title 18, United States Code.

It doesen't really say 90 days like sec 503 does (which is responsible for including simulated sexual in 2257)

Sec 503 states quote:

``The provisions of this section shall not become effective until
90 days after the final regulations implementing this section are published in the Federal Register.

Also if you look through the other non adult industry related sections in this bill there are varying effective dates for different things.

In the whole bill the only "90 days" appears in Section 503!

Quick Buck

Not to nit pick. But if somebody else did all the shooting and editing, you're not the primary producer.... in fact even if you did all the editing but somebody else dealt with the models and did all the filming you are still not the primary.

Primary is the company who "does" the shooting and model id checking. Anybody who buys the content from them is secondary.

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FightThisPatent

there was an issue brought up a year ago, about the definition of primary recordkeeper pertaining to contracted (work for hire). I have to dig back in the memory about the specific situation (hence always necessary to consult with an attorney about specifics) was something about contracted work, the actual producer was just an agent for the company, therefore the company had primary recordkeeping requirements.

This is why those that used contract producers had to be sure to get all the right docs. This situation is different where you lease/purchase content for display on a website.

Those under the secondary recordkeeper categories, as i stated in my first post, can only sit back and watch the FSC litigation case while being an FSC member.

You can try to demand all the 2257 docs for your content from the primary record keeper. Some are giving them to their big clients, but most will say no.

I have been saying this for over 2 years about 2257, and most will fail this simple test.... given any image on your website (that is sexually explicit), can you point to the content producer where that content came from?

If you can't, you have failed in your 2257 responsibilities from the 11+ year old law.

This simple question has nothing to do with secondary record keeping requirements that were later added (on having to have the model ID info from the primary record keeper).

I have posted in many threads, that in going forward with acquiring new content, that you tag the filenames or the folders where the images are in, in some fashion that allows you to know which image in a set belongs to which content producer.

For the image galleries where images were thrown in a bunch with other content is a sticky mess.

This all applies to affiliates as well, who have received content from paysites to do promotions. If you are displaying sexually explicit images, then you to have the responsibility to identify where the content came from.

Many paysites who offer content have shifted to using "softcore" or non sexually explicit images, but there are always those that want to push the edge, in using the "hardcore" images to get surfer attention.

There are more 2257 compliance issues, and I am just approaching it from a broad and simplistic point of view in trying to do atleast the minimum in compliance.

The major point of the original 2257 regulations was that if content was found to be underaged, then those that acquired the content would be able to take it down. You can only do this, if the primary record keeper had good records, and if the websites that used that content, documented those images.

2257 compliance is not hard to do, but it is a very serious issue.

Think about it.. there is a LAW that says if you don't have the right documentation for pictures that involve sexually explicit content, you go to jail.

It's not like you robbed a bank, hurt someone one ,etc.. this a white collar felony offense that can land you in jail for 5 years for failure to document.

I know so many are tired of seeing these 4 digits, but as a webmaster (secondary record keeper) and you fail the test of being able to spot-check identify where your images came from, then for each 2257 thread and post you see, you should be reminded that you have criminal exposure for your laziness in the failure to document.

If you are not a member of FSC, i strongly recommend that you join. As with any business in any sector of industry, there are trade associations whose job is to represent and promote that industry. The adult online entertainment industry is certainly a hot target from all kinds of groups, and its the circling of the wagons and the sharing of resources that a trade association brings.

If you are not a member, then you are outside of that circle and you have to rely on your own ability to track these complicated issues and for a small FSC membership fee, you can instead, focus your time on running your business and making money and doing the right things for your business to sustain long term growth and viability.



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FightThisPatent

the problem is that when going to court you have to define the group, and saying all secondary record keepers is too broad.

once there is a favorable judgement for FSC, it can be argued that the outcome would cover all secondary record keepers since being able to knock down any of the bad provisions would affect the law which applies to all.

The point of being an FSC member now, is to be protected under the coverage of exemption from inspection as a secondary record keeper.

The second point of being an FSC member, is to help financially support FSC as it burns through hourly lawyer fees for defending your rights to make money from pictures and movies of naked people.


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HairToStay

FTP, when the new 2257 regulations were passed last year, it was for content produced after X date ... it was not grandfathered back to 1988 when it was originally written, or 1995 when it became law.

For these new regulations as part of 4472, is this as of the effective date of the new law (90 days after signing) or is this grandfathered back to the original law?

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DWB

Hmmmmm... before they claimed ALL FSC members were covered.

DWB

Call me crazy but if you hold out a printed letter from the FSC saying you are exempt as a secondary producer, they would probably read it, laugh at you and push on in. I'd pay big money to be standing there to watch some geek hand them this paper with a shit eating grin on his face.

This is the United States Government you are talking about... They will do what ever they god damn want to do with virtually no accountability for any of their actions. If they can invade a non-aggressive country and slaughter hundreds of thousands of innocent people, they sure as hell can kick your FSC protected door down and make you eat 2257 dirt.

THAT is the sad and hopeless reality of the country you live in.

FightThisPatent

I have heard differing legal opinions on this issue. Some interpret to being going forward as of last year when Ashcroft's changes were added, some have said it goes retro.

Some companies have taken the conservative answer and ensured compliance to all content, regardless of the actual "cut off date".

The only "right" answer is what your attorney thinks since he will be the one that would have to defend you in court.


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FightThisPatent

Where did you read that? The current litigation does cover all FSC members where both the primary and secondary record keeping requirements are being challenged... but, only secondary record keepers have the inspection exemptions... doesn't extend to primary record keepers.


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clickhappy

is that retroactive?
so if I join today im all set? Im only secondary and only use sponsor content

FightThisPatent

Been doing this for 3 years on GFY and habits are sometimes hard to break, and as of yet, there isn't a support group for Fight the ____ slogan posters (certainly have seen some trying it out), so i'll have to sadly continue to display my public deficiency of having the need to sign all posts with some twitty Fight the ____ closing.


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FightThisPatent

The litigation is still going on, and FSC and its members are in the case, so being an FSC member would mean coverage on the secondary record keeper exemption until there is a ruling.

There are many more reasons to join FSC than just this 2257 secondary record keeper exemption, and your membership does provide financial support to the only group that is looking to ensure your rights to run your business.


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Dirty Dane

No fence, supporting FSC and fight 2257 is good, but as a member you are not exempt from inspections/investigation and that should not be the reason you become a member. That would put you in a prisoner dilemma situation.
2257 surely has hidden agendas, but if you look neutral at it, it is designed to self-regulate as secondary producer to comply with 2251. If some model you promote with suddenly turned out to be or suspected underage, they CAN come for you, and being passive by not ensuring with age verification would make you weak and with no excuses in court. One thing is violating 2257, but... do NOT violate 2251

FightThisPatent

The real problem is that paysites who accept content, when not given the actual model ID docs, have to assume that the content producer (primary record keeper) did their job. Turns out, many content producers did a piss poor job in documentation (due to laziness or not even consulting with an attorney to get things set up), that has created some potential harmful efffects to paysites.

Affiliates who receive content from paysites also assume that the content is legal...so it all does goes up the food chain to the content producer.

It has been said many times and i will repeat it here.. know who you are doing business with, where situations like 2257, can severely impact you.

Some content producers are releasing model IDs with their sets (blackened or unblackened), many are not to protect the performer.

The best case outcome is that the secondary record keeper items get struck out. I believe the primary record keeper responsibilities will always be there, and SHOULD be there, to ensure that at the point of content creation, that only an ADULT was used in the production.

For that part of 2257, i feel is a good law... the latter day changes are clearly put in to place more burden on all those that use the content to comply...and can certainly be used as the tool to take down porn, rather than through an obscenity charge.. no difference then taking down Al Capone for IRS violations rather than rackateering and other criminal offense that couldn't be pinned.

Businesses need to do what they can to comply with the law and act in best efforts and in good faith, doing nothing is the wrong approach.


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DWB

Fight my hairy balls!

They were not clear about this when they were asking for money before. They said that if we wanted to be covered that we all needed to be members. Now only secondary producers are exempt from inspections.... so then why did they not just say, "ALL SECONDARY PRODUCERS JOIN THE FSC, THE REST OF YOU ARE FUCKED!!!"

I don't even know why I'm bitching, I don't care about all this anyway. Let the sky fall!!!!

Kimo

affiliates are fucked, so fucked

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Sinstar

Thats what I don't understand. Is that even legal for members of a certain organization to be exempt from a law? If it applies to some, it should apply to all.

FightThisPatent

not really, it comes down to choosing solid/good partners to promote.

Many of the bigger programs have gotten their 2257 acts together, and are looking to ensure that their affiliates are not put in any problematic positions.

Promoting non-sexually explicit content (ie. no insertion of any kind), is one simple method. I would still recommend that ANY image that is shown by the affiliate should be tagged in some way (filename or folder) such that you know where the content came from.

2257 will weed out those paysites and content producers who aren't complying with the law.. so the sky will only be falling on those who haven't taken any of this seriously in the last couple of years.


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Dirty Dane

I think what this business need, and should be done long time ago, is some central, independant, neutral, and most important; accepted official organization, that handle all model releases. That organization could be some members from all levels, especially representatives from the billing companies, cc companies, child protection organizations and even federal bureaus.

I'm not talking about an open central register where everyone could lookup, but a "clearing" from the top. When the model is "cleared", she/he can be put on the paysite(s), for content sale etc. This would make things alot easier, cheaper, it would end the "assuming", it would give the legit adult business a better name, and most important; it would prevent underage models.
With the money and number of participants in this industry, that would cost nothing compared to the situation now. Only a little time

Just some thoughts

Quick Buck

Hey FTP,

I enjoy reading your posts, you seem very well educated about this, but i disagree with you about this partially.

I'm no lawyer but I've found that most lawyers just aren't really that sharp so we usually do our own analysis of things related to our industry and then confirm them with our lawyers.

If the content was filmed prior to Jun 23 2005 then the primary producer is the person or organization who actually did the filming. Whoever manipulates that content (even if they manipulate it after jun 23 2005) is not the primary producer but the secondary producer.

The DOJ issued a clarification letter to the FSC explaining that they considered content filmed prior to Jun 23 2005 to be exempt from the new revisions as it applies to the definition of primary producer.

However by my reading, it would appear that for content filmed *after* Jun 23 2005 that if you outsourced production to another company and they then sent you tapes which you converted to trailers, videos or dvd's that you would be the primary producer (and perhaps the outsourcee as well as well... so possibly two primary producers). So I think you are right but only regarding post Jun 23 2005 content.

Just for everybody's reference, here are the two versions of the definition of primary producer:

The DOJ's clarification letter: http://www.freespeechonline.org/webd...tter%20PDF.pdf

Happy reading

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FightThisPatent

i will try to find more definitive clarification on where the clock starts on 2257 documentation for secondary record keepers and report back.... the answer may be academic if FSC is successful in its lawsuits, but for those are paying attention, it is good to know.

Fight the bated breath!

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clickhappy

a naked model with no inserations is sexually explicit.