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[2257 must read] E-mail Your 2257 Comments to the DOJ
By: Lawrence Walters, Gregory Piccionelli, and J.D. Obenberger
08-12-2004 ---------------------------------------- The following is a collaborative effort of Lawrence Walters, Gregory Piccionelli, and J. D. Obenberger: Proposed changes to the regulations implementing Title 18, USC §2257 were published June 25, 2004 in the Federal Register at 69 F.R. 35547. The proposed new 2257 regulations can be found here; a primer on 2257 compliance, written by J.D. Obenberger, is online here. Public comments on the new regulations are due on or before August 24, 2004. Please select from the following suggested official comments pertaining to the proposed 2257 amendments. Select as many topics as pertain to your particular circumstance and copy and paste them into the body of your e-mail. When selecting a topic for inclusion in your e-mail, you should include all paragraphs pertaining to that topic. You must provide your name, corporation (if applicable), and e-mail address, which will be used to identify the sender of the selected comments. The comments should be sent to [email protected] Nothing below constitutes legal advice or a legal opinion of any kind: Suggested Comments to the DOJ Re: Amended 2257 Regulations Records Keeping Requirement for Webmasters Is Invalid and Illegal; §75.1(c)(2): The proposed requirement that secondary producers, including Webmasters who license images from photographers, obtain and keep age and identity records imposes an immense, complex, and sometimes impossible burden on Webmasters, a burden of a nature never intended by the Congress, and a burden that will inevitably cause a not inconsiderable number of lawful images, of persons well over the age of eighteen, to be withdrawn from the Internet. The new regulations will require many Webmasters to go back and obtain age records for all their content, which in some cases can number in the hundreds of thousands of images. However, the case of Sundance Assocs. Inc. v. Reno, 139 F.3d 804 (10thCir. 1998) says that the Justice Department does not have the authority to impose this requirement. Incorrect Effective Date: The new regulations impose effective dates of November 1, 1990 and May 26, 1992. These effective dates are contrary to the commonly-understood effective date of July 3, 1995, which the industry has used for compliance thus far. Enforcement of 18 U.S.C. § 2257 and the regulations thereunder promulgated by the Department was enjoined from the outset until July 3, 1995. The Justice Department later agreed, in response to threatened litigation, that the effective date of the statutory obligations under Section 2257 would be July 3, 1995, rather than the dates specified in the statute itself. Because enforcement was enjoined until July 3, 1995, producers and distributors of materials made before then should not be forced to comply with the statute and regulations retroactively. 75.8(d) Statement Location Requirement is Counterproductive: The statute requires a conspicuous disclosure statement. Where Website content provided by multiple content producers is concerned, it would be impossible and illogical to require all disclosure statement information to be contained on the home page or main url. The records custodian for each group of content must be designated on the interior pages to avoid confusion as to which custodian maintains the records for which content. Webmasters should be allowed to place portions of the disclosure statement, tying specific records custodians to specific content, in the interior pages of the site, or wherever necessary to avoid confusion. 75.6(e): Type Size Requirement is Illogical: Requiring an 11 point type disclosure statement for Websites is nonsensical. The display size of any particular type contained on a Website depends on the size of the monitor or screen on which it is displayed. Webmasters have no control over what the display size is on any particular screen. 75.5(g) Seizure Power During Inspections is Invalid and Unconstitutional: The new regulations grant law enforcement officers, who can be anyone designated by the Attorney General, broad authority to seize any evidence of the commission of any felony during the course of an inspection. Nowhere in 18 U.S.C. § 2257 is such a broad regulation authorized. Moreover, evidence of a felony could include evidence of violation of an obscenity statute, and seizure of media materials under those circumstances without a judicial determination of obscenity would offend the First Amendment. Moreover, this provision runs afoul of the established statutory scheme found in the Criminal Code and the Federal Rules of Criminal Procedure, and the Fourth Amendment, relating to searches and seizures. 75.1(c)(4)(iv) Host Exclusion is Under-inclusive: The new regulations exclude from the definition of a producer, ?a provider of Web hosting service who does not manage the content of the computer site or service.? This exclusion is vague, and does not clearly exempt all hosts and other service providers who merely allow for access to some form of online content, without exercising editorial decisions over the content. For example, some hosts or service providers may exercise editorial or managerial control over some forms of content online, such as free hosts who include banners on the display of various Websites, as their means of revenue generation. Other hosts may, to a certain extent, control the way in which content is displayed, thus, potentially removing those hosts from the scope of the exemption. This would apparently contradict the presumed intent of the exemption: Every Web host is called upon to examine into copyright infringement claims, and his non-liability for infringement may depend on his decision whether to delete hosted content from servers under the provisions of the Digital Millennium Copyright Act. Thus, it would appear that all Web hosts ?manage the content? whenever they decide to delete or retain content, thus rendering this so-called exclusion a sham. Any proposed regulation should contain an easily understandable, precise definition of the kind of conduct that excludes a host from the exemption here proposed. 75.2(1)(ii): The Requirement Of Maintaining Of Records Indicating Where Each Depiction Is Published On An Internet Computer Site or Service Is Vague, Confusing and Onerous. The proposed regulations require the creation and maintenance of records to include data specifying where each ?depiction is published on an Internet Computer site or service, [and] any URL associated with the depiction.? This requirement is vague and confusing. The regulations are unclear about what comprises an ?association? between a URL and a depiction. Moreover, even the most reasonable interpretation of the requirement would impose extremely onerous and economically crushing obligations upon nearly all online publishers of erotic materials, including our site. This is primarily, but not exclusively, because a depiction can be, and often is, ?associated? with a vast number of URLs, sometimes a large number of URLs, and the type and manner of such ?associations? can be numerous and varied. Such ?associations? can also be dynamic, transitory or ephemeral in nature, and such interstitially changing URLs are fundamental to the technical functionality of certain established means of expression on the Internet: To require a substantial technical change in the dynamic functioning of Websites to eliminate such interstitially changing URLs will directly and impermissibly work to the prejudice of protected expression in a manner kindred to ?compelled speech.? To require cross-indexing by URLs that are used one time only for one Web transaction creates an impossible record-keeping burden of gargantuan size and complexity. Moreover, because depictions can be, and often are, accessed by deep linking from other locations on the Internet, sometimes without authorization, a party may not know, or even be able to ascertain, all the URLs that are ?associated? with a particular depiction. Therefore, in my opinion, the proposed changes to the regulations impose extremely burdensome and costly obligations upon our company and other publishers of otherwise lawful erotic materials protected by the first amendment and the free speech provisions of each of the states. It is very likely that compliance with the proposed new requirement of indicating where each depiction is published on the Internet and any URLs associated with the depiction will be economically prohibitive for my company. The imposition of such a vague regulation, impossible or nearly impossible with which to comply, the violation of which caries the potential of five years imprisonment, will so confuse and scare law-abiding Webmasters publishing lawful erotic imagery that their publication of this material will cease as a consequence of the chill imposed on speech through this provision. |
75.2(1)(i): The Requirement Of Maintaining A Copy Of Each Depiction Is Vague, Confusing and Onerous: The proposed regulations impose a new requirement of maintenance of a ?hard physical of electronic copy? of every depiction subject to the statute. For some Websites this could mean literally hundreds of thousands or, in some cases, millions of copies of depictions which must be separately associated with the other data required by the regulations. (Indeed, it is not clear what a ?hard electronic copy? is: If the authors intend by this language to mean CD-ROM or DVD, the meaning is more properly expressed as a digital file in optical media, and if tape, a digital file in magnetic media.). The manpower necessitated in creating copies of all imagery for all erotic Websites is enormous, tedious, and complex, and in the case of Websites featuring live streaming video, the task is physically demanding on the original provider, but absolutely impossible for the kind of Webmasters called ?secondary producers? under the proposal who manage Websites carrying streaming content furnished by the original providers.
The adult Internet includes myriad examples of sites containing three to five thousand models in depictions perhaps sixty times as numerous. In the normal commerce of the adult Internet, Webmasters, including Webmasters publishing Websites of this size, license or buy images from many photographers and, as the existing regulations contemplate, they rely on the photographer to examine and copy all required age and identity documents and to maintain records associated with the creation of all images. To require Webmasters to obtain and maintain more than information associating the imagery with the original producer places a cumbersome burden on protected expression that adds absolutely nothing of effective value to deter commerce in child pornography. Compliance with this new requirement will probably impose a crushing financial burden on my site and every other site so situated and will so impermissibly act to burden protected expression as to stifle it at the risk of prison. None of this will provide one whit of effective regulation to protect against the sexual exploitation of children. In addition to imposing an unfair and onerous new requirement on my ability to publish lawful erotic materials, the new requirements pertaining to the maintenance of a copy of each depiction are vague and confusing. For example, do the regulations require that a new file be created whenever a depiction is modified or moved? Will multiple sets of records, each including a separate copy of the depiction, need to be created and maintained for each such derivative work or whenever the depiction is used in a different Website? Will new files, including copies of a subject depiction need to be generated each time a new banner advertisement or search result containing the depiction is generated? Is a photograph, edited to exclude explicit portions, a new ?depiction? independently subject to the file maintenance requirements? If so, would a duplicate set of records, including additional physical or electronic copies of each such depiction need to be generated? Burdensome Records Retention Requirement: The record keeping requirements contained in the proposed regulations are Herculean in nature and impose a burden on Webmasters and content providers that are essentially impossible to accomplish. For example, the proposed regulations appear to require photographers to maintain a copy of each depiction for years. Especially in the case of multimedia works such as digital movie files, and in the case of live streaming video, which often operates continuously around the clock, the digital storage requirements will be massive and continuously ongoing. While this requirement may be handled with ease by large-scale commercial enterprises, the burden will be insurmountable for Websites operated by individuals and more modestly staffed and equipped Web operations. §75.3 Overly-Complicated Indexing Requirement: The proposed regulations require that all records be retrievable in the following manners: 1) alphabetically; 2) numerically; 3) by legal name; 4) by alias; 5) by maiden name; 6) by nickname; 7) by stage name; 8) by professional name; 9) by title; 10) by number; 11) by ?similar identifier of the media. The purpose of Section 2257 is to prevent child exploitation, not to create a cross-index database for law enforcement. The statute requires gathering specified information, but grants no authority to require the proposed indexing scheme. Additionally, such an indexing requirement is overly burdensome, in that it requires the development of non-existent computer database retrieval programs and the use and purchase of same by every disseminator of protected erotic speech. Many Webmasters operate on a shoestring budget, and do not have access to the resources of a large film producer to whom the regulations appear to be primarily directed. Requiring categorization and retrieval in this manner does not further any legitimate governmental interest but instead, burdens small Webmasters with expensive database requirements, and data input obligations. A suggested remedy would be to require retrieval only by the actor?s legal name, name used in the depiction, or title of the work. Such limitation would allow for categorization using more commonplace database tools and filing methodology. Anything that does not serve the purpose behind the enactment of the statute and would serve only to effectively suppress the use of otherwise lawfully created expressive material. Privacy Concerns: The so-called secondary producer provisions (which the proposed regulations perpetuate) impose a duty to obtain or maintain identity records on all persons in the chain of publication, including those with no direct contact with any of the persons depicted. The imposition of such a duty carries with it a continuing and never-ending cycle in which personal identity documents concerning models and performers will be disclosed to ever more numerous and distant persons. This obligation seriously compromises the privacy and endangers the safety of each performer and is likely to lead to such evils as identity theft, stalking, harassment, and uninvited personal sexual solicitation of the performers. The Internet has enabled many persons of limited economic means to publish Websites to a worldwide audience, including Websites with sexually explicit themes. These persons operate Websites without any employees from their residence. There are a very substantial number of such persons. These persons do so often only as a small part of an otherwise normal life that may include regular employment in unrelated enterprises. The ?disclosure statement? provisions, as applied to individuals operating Websites from their homes will, in many cases, operate to require these persons to disclose the only address they have, their home address, together with their name. This is an incendiary mix that will lead to the same evils: Stalking, harassment, and uninvited sexual solicitation. 75.5(a)(1): Inspection Obligations are Overly-burdensome: The proposed regulations require each producer or secondary producer to make records available from 8am -6pm, 365 days per year. Authority to require all regulated businesses to be open every day of the year from 8am ? 6pm cannot be found in the statutes, and such requirements ignore the different business hours kept by the regulated businesses. This proposal seems to mandate that no one may lawfully create or disseminate sexually explicit material unless that person can afford to staff and maintain an office that is open for inspection at least seventy hours per week during the business day. However neither Section 2257 nor the Constitution limit freedom of expression to those who can afford to do it as a full time enterprise. This proposal also limits the practical ability of photographers to do ?location shoots? or to rent remote studios, to those photographers who can afford to hire a custodian who will always be present during the specified hours. All of this quite unreasonably, and quite unnecessarily, burdens the creation of images for publication. The prior regulations simply provided that the availability be ?reasonable?, and that is flexible enough to accommodate both the government?s interest in having an opportunity to inspect and the part-time producer?s actual availability. These regulations act to put a price tag on some kinds of expression by a large group of persons, establishing by government fiat a price that is practically unreachable by large numbers of producers today. 75.2(a)(1)(ii): The ?Copy of URL? requirement is ambiguous and confusing. Given the definition of ?URL? in Section 75.1, it is especially confusing exactly what is required by 75.2(a)(1)(ii). If the text is meant to require a record of the URL, it should so state. If the text is meant to further burden expression with a requirement that a copy of a Web page featuring a depiction also needs to be kept, it should so state. |
just so you know, these lawyers came up with some pretty nice legit responses that you can email in yourself....and they are very technical and very accurate
email them in, and fight for us! |
Brilliant. Bump!
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Companies that make money off of having more webmasters in the industry* should make all of their clients aware of this collaberative effort by the "Big 3" online adult entertainment attorneys and ask them to send in their comments.
Not only to protect their own business, but to help protect their clients as well. *Companies like CCbill, Ibill, Content producers, Designers, Software designers, message forums (like this one) etc. Anyone who makes more money by having more clients (Vs fewer clients that spend/earn more). Once people get big enough, a lot of things move in-house. |
This one SHOULD BE PINNED !!
LIKE PINNED |
Bump .. Already expressed my profound disgust at putting the models safety in jeopardy as a primary concern.
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What about emailing them to the EFF and ACLU as well?
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Nice work. Thank you. :thumbsup
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excellent come back and well written.
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:thumbsup
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Seriously, can we get this pinned for the month?
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Bloody good of Walters, Piccionelli, and Obenberger.
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Thats excellent :)
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Email sent!
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bump, nice post.
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Fanastic.
Here is a link where you can submit your comments online: http://comments.regulations.gov/EXTE...TOKEN=60046297 |
Bump!
Yes, we all need to FIGHT this! |
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Our they saying to email the entire letter or just parts ? Thanks.. |
Do you think they will actually read the comments and do you think they will take them into consideration? I highly doubt it. This government does not give a fuck about anything but their own agenda. I guess it can't hurt to send them but don' t hope for too much.
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although admittedly I don't deal in any 2257 applicable content, this is an important issue that should be fought and won... if an adult bookstore OWNER/operator is not required to have 2257 docs on EVERY magazine they sell, and post that info on the front of their store for all passer's by view as they like then these law makers need to GET A GRIP... if they want to come after porn so badly there are numerous other things they can attack...this is just reeeedukulas... I believe someone will eventually get these overbearing proposed changes struck down in court as Sundance had...it'll just take time... |
:thumbsup
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Why is this dropping?
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Bump :thumbsup
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:thumbsup
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I'm sending one as we speak!
:thumbsup |
for those that wondered, you should pick a part and email that certain part as it pertains to you
http://www.avn.com/index.php?Primary...tent_ID=186841 is the original article, and it has bold and italics as necessary, i just didn't have time to recreate it here but go to the avn.com one and reread it |
i am going to keep this bumped, i suggest you all help me...
i boomarked it also, so when florida is over we can bring it back to life |
with ya
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keeping this on the front page for everyone to see
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bump
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2257 suxxorz
bump |
It's a bit of a read ...
And I haven't finished it yet. Is there a simpler version for the "non-webmaster" that I may post on SexEducation.com available? K.I.S.S. How about a slogan similar to ... "Have you reported to Acacia yet?" something that brings it home to the average person? |
Thanks for calling attention to this, JaceXXX. Anyone who wants to email the DOJ using these comments should visit the original story on AVNOnline.com or at AVN.com. The sections and instructions are a little more clearly defined there, and there are hotlinks to the regulations on the DOJ's Website and to J.D. Obenberger's updated "2257 Primer."
http://www.avnonline.com/index.php?P...tent_ID=186841 http://www.avn.com/index.php?Primary...tent_ID=186841 |
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Your best bet is to be organized BEFORE its too late IMHO
:thumbsup |
bumpin
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FREAKIN PIN THE DAMN THING ALREADY!!!!!!
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:error not supposed to be on page 4.
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Thanks for this thread...
They'll definately be hearing from me :thumbsup Very Nice Responses BTW |
Bump
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getting something drafted :thumbsup
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:( Please keep in on page 1.
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PIN THE TOPIC!
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read that paragraph, that is EXACTLY what the DOJ wants. |
Will someone just please file a injunction in federal court, or are the "specialists lawyers" just reaping in the new fee's.
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exactly. lawyers no matter what are scum. just pay them their fucking fees and be done with them. |
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