why did the DOJ do this deal?
 

according to J.D. Obenberger, they did it because they thought they would lose their case in court today:

"If the government didn?t fear the strength of the pleadings they wouldn?t have agreed to this deal.?

eric Bernstein also agreed.

?I find it?s an interesting acknowledgement. If the DOJ truly believed it had a winner, it would not have made this deal,? said Bernstein. ?If the government thinks it?s going to win, why would it make a deal??

are they just being pollyanna about this? why would the doj cut the deal instead of just going to court and letting the judge decide on the TRO?

That argument could be said both ways.

Also, it might be "nice" for the goverment to have a couple of pending (non-FSC member) suits on their resume before proceeding. :2 cents:

Never under estimate your enemy. The governement has a slick Mexican lawyer that can brush off the Geneva Convention (CAT) like a fart in the wind.

and what does DOJ gain with the deal assuming that they have a weak case?

believe it

& piss em off too much,.....

and well, do you remember that converted oil rig in the movie Face Off?

Oh Shit, the Goverment's lawyer is mexican? Fuck signing up @ the FSC. I bet carlos down the street is probably related, maybe he can hook something up.

well, good question. what did they gain by doing this? they gained the ability to prosecute non-members. if they were confident that the judge would deny the TRO, they would have just went to court and let the judge decide.

however

if the FSC was confident, why did they do the deal? why not just get a blanket TRO and enough with the members-only protection.

something is not adding up here.

Like Acacia they would rather go after "low hanging fruit" than those with the funds/momentum to actually fight them. :2 cents:

I doubt it. they have plenty of money from taxes etc.. they are just getting there ducks in order like everyone else.

They gained the ability to have every single name and address of every single FSC member unsealed wih a simple court ruling.

All they have to do now is say that one member of the FSC has CP on their sites and the entire master list will be unsealed allowing them to go after EVERY FSC member.

Id rather not have my name on that master list, there is no telling how the government is going to play with it now that the FSC has agreed to providing their entire member base to a third party :2 cents:

Regards,

Lee

Maybe the DOJ had not planned on doing inspections yet anyway? If the judge granted a injunction today that would not look good in the trial.

no matter their reasons for agreeing to the deal, these are the facts:

advantage - more time to fight it
advantage - more time todo house cleaning and self-clean where needed
advantage - this has unified our community - both in USA and world-wide

disadvantage - fighting longer takes more $$$
disadvantage - some people will get lazy and start playing risky games
disadvantage - some of you drink too much and have short memories

I agree that the DOJ is probably concerned that they don't have an iron-clad, slam dunk deal - thus better to see if they can adjust it and get something that can hold.

No one likes to lose but for the Prosecutors its especially bad. Prosecutors get to choose their battles, unlike defense lawyers who have take the defendants as they find them, prosecutors can just elect to not proceed or plead down shitty cases. On the other hand they can offer NOTHING when they think its a lock win, and believe me they do exactly that when they feel its slam dunk city. I practiced as a defense attorney in Florida for many years and when my case was the worst thats the time negotiating with prosecutors was most like negotiating with a 2 year old. All you ever hear is NO! Back then nothing was finer than watching the prosecutors kiss my ass to plead a case down that really sucked and when I returned their 2 year old impression with my best impression of a Stone Golem to hear them say Nol Pros (we drop the case) when the Judge asked them to proceed.

Today the DOJ settled because they believed there was a very good possibility they could have walked out of Court LOSERS today and once again, that is just unacceptable. Instead, this deal was cut and the DOJ walked out with the right to prosecute those dumb enough to not join the FSC before next week sometime. And there will be plenty of those from the looks of this board tonite. For the DOJ something is always better than nothing.

Awesome post. Too bad most of these kiddies will not get it. I am convinced now that all the naysayers just don't have $100 to join and are too lazy to make it.

Sorry gang, I have a few years of experience in negotiation under my belt, and my feeling are if the FSC thought they had a winner, they would not have made this deal.

I don't really see how today is a victory, except maybe for the FSC. An injunction being granted would have been a victory, and it more than likely would have been honored by all, and everyone would have enjoyed the fruits of said victory.

The government agreed to this deal because now they can proceed against anyone that is not a member of the FSC, pretty much with the blessing of the FSC. The government lost nothing by agreeing to this 45 day delay. :2 cents:

excellent post - agree 100%

Agreed.

Now all the government needs is a single case to be won, by proving it through the court system or by someone taking a plea and they are able to prove that the current regulations actually do 'work'.

Once that happens, EVERYONE is screwed.

Regards,

Lee

Kinda of strange how this all now makes it a law that pertains to some and not others..

Trial work is always brinkmanship to some degree Baddog. Everyone postures but the real winners in litigation wars know when to cut deals. Adopting a game plan that says you will not accept any deal is unwise imo. Here the FSC got a known result and imo it was a pretty good one too. I think the settlement shows more that the prosecutors were genuinely concerned about the prospect of the FSC handing them their asses in Court today than the other way around. If it was the other way around, the settlement would have been noticeable worse than this, if in fact any settlement was ever even offered by the DOJ.

Edit: Oh and its 75 days isnt it?

Sounds great.

Simple now in order to be "protected" you have to pay the FSC kind of like a shop owner would pay the mafia for "protection"

Not at all. YOU don't get it. If FSC believes it would have WON today yet instead makes a deal? Hmmmmmmmm. Ask yourself WHY? Oh wait a win would basically cover EVERYONE thus no reason to make webmasters join the FSC and collect the nice membership fee. Funn yhow peole like you can see the supporters of .XXX as people only looking out for the almighty $$ and no US yet you fail to se the SAME thing here.

What's that saying? "A fool and his money....."


Fact is all the FSC did for you is buy you what, 60-90 days from possibly being busted? You STILL have to be compliant as of TODAY regardless. And afterwards the DOJ has a nice list of people to go after. Of in 90 the FSC gets it's injunction then ALL of us are covered anyways. If not then WTF good did it do you?

I'll come out of my gfy lurker mode and make a rare post

IMO the FSC had a very good "burdensome" argument in regards to secondary producers complying in the one month they were given. The DOJ agreed to this extension to save themselves from losing that argument in court.

However, I honestly do not see what the FSC has gained from this "deal" other than a 6 week extension, and now their burdensome argument is out the window because it's members now have extra time to get compliant.

Not a good deal on the FSC's part imo.

And yes, I am an FSC member :)

I think you may also not get it. Lets take a few knowns:
a) The FSC is suing the Feds
b) Such suits cost huge money
c) Their suit is ongoing

Historically, adult webmasters are a real cheap lot. Support for anti COPA was weak, Acacia is being fought by just a few despite many pleas for help so its very possible the FSC is short on funds to wage this war. Remember this was just a TRO hearing, and yet look at the result:
a) The FSC created a means whereby some support from those who are looking to benefit from a stay of prosecution is available but guess what it does cost money. On the bright side this amount is really a small fraction or a small fraction of the cost of this case. And we are paying for results. So many times people are called upon to pay legal fees and their results end up nowhere. Here we have results and the cost to participate in the benefits are low.
b) The FSC now has at least a better chance of winning this fight as they got some capital influx. Would you rather the situation be that the til is empty and you are wondering who will defend you on 2257? If the til is empty at the FSC, guess what we will be on our own.

People keep acting like the fee to join the FSC is some kind of extravagant amount and its unfair. No that would be the situation if the Feds came to your door and you woke up facing potential charges to put you in jail the rest of your natural life and you are then told defending it will cost you your life savings and as well as your families life savings.

Please go easy on the FSC, we really need them to be well funded and stable.

A) No they arent, not until the 8th August.
B) Yep they do.
C) No it isnt, until the 8th of August.

This 'agreement' doesnt protect any of their members from prosecution, all it does is give them a little more time to become compliant.

It has no better chance, if anything, it has a weaker case against these new regulations, they were concerned they would be overburdonsome, the government just gave their members more time to get their shit together, they were concerned about privacy issues, the FSC just handed over a list of their members to a third party.

Correct, the FSC wants your money, without it, they cant do anything.

At the same time, in order to get your money they will tell you what you want to hear, not what you NEED to hear.

Why hasnt the agreement they made with the DOJ been posted in FULL every other document to do with this has been in the past, why not this important one :helpme

Regards,

Lee

agreed - think of it like a 1 time (per year) retainer fee that provides a layer of legal protection

David is right but I have to agree we should see the agree in full.

Good post LadyB.

Let me throw out a possibility to you. Perhaps the FSC brain trust was looking at their funding and had real concerns. They were given an opportunity to make a play which I would agree pretty much flattened the burdensome argument, but the end result was they really pumped up the FSC bankroll and now they have the artillery ready to do war. This was just a TRO and ultimately we need these guys to be funded to go the distance. Was trading off burdensome for stability to see this through Court rulings worth it? I would argue it was, especially since its really 10 weeks before the Feds can come knocking. Even the largest secondary producers should be able to get their act in gear in that time, so the time period did in fact help and as a bonus they got funding. I disagree, I think this was a win.

The judge in this case is a Clinton appointed judge and the case is in the same district where the previous case killed part of the 2257. The TRO is not that hard to get in this case with this judge. So, is it just me or did the lawyers on "our side" did a really sitty job?

I mean you do realize that if the TRO is never granted or granted and then lifted - all of us ( even the FSC members ) are still responsible for the content we put up from today and on?

I say this was a big defeat for the FSC. Am I wrong?

Please show me where I was bitching about the money? I've never asked for a FREE memebrship in the FSC and even if it was $1 I don't like to feel as if I'm being shookdown. It's as simle as that. And many feel the same way I do.

Now you are asking me to gleefully pay a memebership fee to a organization who motives I find somehwat dubious? That's insane. Now I could be 100% off base, but seeing that is it how I feel would YOU pay a membership fee if you had concerns about them?

There's ZERO guarantee than anyone joining TODAY or later will even have their names on this list before it has to be handed over. I fact I highly doubt it will be.

Also this "deal" does NOT mean you don't have to be compliant.

This deal does NOT mean that in 90 days you can't be investiagated or procescuted by the DOJ.

All this deal did was to buy a few weeks from being investigated. And it also made sure that your name will be given to the DOJ so they have a nice list to go by when they do start investigating. And if you think that by handing this list to a so called "non partial" 3rd party means the DOJ doesn't get the list you are completely ignorant to how this government works and what it will to to get it's way.

At any rate I don't deal in content thus 2257 really doesn't apply to me so I don't see as how a membership really helps me. I DO however have concerns for the "small guys" out there and well the industry as a whole. And often when you do a deal with the devil you get burned. The DOJ has something up it's sleeve and I think the FSC just got fucked over.

All of you are missing it.

The FSC felt they had a good case, but where they 100% confident? Hell no. They might have had a great "game face" on, but I bet you none of them felt it was a "LOCK". They had, how long a month or two to prepare. Then went in to yesterday prepared for a fight, they were confident, BUT you never know how courts will rule. An extention is not a loss. It's small victory. They bought more time to prepare. The smart (and safe) thing to do it to take the extra time, and not risk walking out a loser. Keep puting it off and give yourself more time to build an even stronger case.

If they would have turned down the offer and lost, you guys would have wanted to hang them for doing that.

What does the DOJ get from this. A chance to save face and by more time themselves. They also got a chance to get a preview of what they were up against. It's better for them to keep the pressure on us, and then to lose the battle. Intimidation is a powerful thing and now they have more time to do it. Think of how they have been playing with your emotions (and income), the DOJ sees this as a win most likely too for them.

BUT THE REAL REASON WHY THEY AGREED TO PUSH IT BACK!

AND YOU HEARD IT FIRST HERE. THE DOJ WANTED TO KEEP THE FSC PREOCCUPIED WITH 2257 THE NEXT COUPLE MONTHS AND DIVERT ALL OF OUR ATTENTION FROM .XXX

IF ANYONE THINKS IT'S A COINCIDENCE THAT .XXX AND 2257 POPED UP AT THE SAME TIME, THEN YOUR NIEVE IMO.

Politics!.... 101

Lee, lawsuits have showtime on Court dates but the work to get to show time happens before Court dates. This should be obvious. They are suing, work is ongoing and money is being spent to do this work. TYou seem to believe tht the FSC lawyers have this big timeout period and are taking breathers and counting money, and come Aug 8th, they just need to show up for the next Act in this play they are running. Get real.

10 weeks of guaranteed time without the chance that Feds will be in my building tossing it looking for their unsacred cows is a helluva benefit imo. Your absolutely entitled to think otherwise.

The privacy issues are about our models. Hell, at this point I'm not really bothered by the fact they might know us (and this is mere speculation that they will in fact get access to a list) we are doing nothing wrong. I do want them to fight for the privacy rights of the models though, and yes they are fighting that issue. The burdensome issue is only partially dead, it still can be used but I would agree that some of the air in that ballon leaked out today. IMO this was never going to be won on this issue though, ex post facto and conflicts in the appellate court rulings seemed to be better issues that could actually get us results, but again your absolutely entitled to your opinion. I dont think you can dispute that the cash influx to the FSC improved our chances of winning. You would be naive to believe justice in the USA can be had on the cheap.

We gave them plenty, and I feel great. Sorry you feel otherwise.

Today I wanted to hear them say the Feds will not be knocking on your door tommorrow. Them telling me 10 weeks was fucking fantastic. Again sorry you feel otherwise.

Court settlements always seem to have non disclosure rules to them. There is nothing to see here, move along.


Regards,

Lee[/QUOTE]

How about this.. The FSC and the GOV would rather work it out. The GOV is going to get the ruling no mater how you look at it, it may take awhile but they would have won on most parts of the new regulations. Now the FSC can assist on helping clear up the law on the parts that need work.

Why wouldn?t the FSC want a deal? The fact is people need to be busted.. Tons of CP is being produced and passed around. Newsgroups, p2p, yahoo, etc. Now they can still go after the people that need to be busted and let the current FSC members have a safe period to get ready for the inspections.

This law isn?t a bad thing, it just had some bad points.

Thats the problem, this isnt a 'court settlement', it is a private deal made between the DOJ and the FSC.

If it were a court settlement the docs would be public record and well, they arent.

There is nothing whatsoever legally stopping the DOJ from backing out of this 'deal', all that would happen if they did is that the FSC might decide to take them to court for breach of contract and lets be honest, based on recent events, if that was the case then the FSC would probably only enter in to another private contract :2 cents:

Regards,

Lee

Good on you LadyB for speaking up!

YOU GUYS NEED TO STOP BITCHING ABOUT THE FSC. THE "AGREEMENT' WITH THE DOJ WAS NOT WITH THE FSC BUT WITH ALL PLAINTIFFS.

IF YOU DON'T WANT TO PAY THE $300 TO BE IN THE FSC THEN GO HIRE YOUR OWN ATTORNY AND PAY $10,000+ TO BE A PLAINTIFF OR SHUT THE FUCK UP!

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

Denver, Co. - The Free Speech Coalition (FSC) announced today a stipulation between the parties in Free Speech Coalition et al v. Alberto Gonzales, under which the U.S. Department of Justice agrees that the regulations relating to the federal record-keeping and labeling law, 18 U.S.C. §2257, will not be enforced against plaintiffs and all FSC members until September 7, 2005.

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

SEE THE WORDS " plaintiffs and all FSC members"

Yes and in 10 weeks one of the FSC main argumetns is GONE. They can't go back in court and say that their members still didn't get enough time to get into compliance when they made a deal saying 10 weeks would be enough. Not to mention their memebrs would have had nearl 15 weeks to get into compliance and that's going to be awfully hard to argue to a judge that that is not enough time or overly burdensome.

BINGO...............................you are so on the money its scary.

Believe it....this is the exact conversation i had on the phone today, with someone who is so close to the whole deal.

People from our industry that support .XXX that is the smoke.....the Fire is the Govt...

No you are not wrong at all. It was a big defeat today.

And what the "pro" settlement people keep repeating is "You're too cheap to join FSC." which totally misses the point you and many others have been trying to make about not getting the tro.

Too logical for most people I guess Doc..

Simple answer: The DOJ doesn't need these new regs to fight cp!
If you believe that's what these regs are about..cp..then you have missed the whole movie from beginning to end.

Yep it's not about the money and if that's your best and only retort to us that question this deal then you need to just STFU until you come up with something better.

I find people that are REALLY defensive are most times actually fearful they are wrong.

I do think the new law is about CP.. Only people that live in fear and plan on not complying need to worry. I'm not worried.. I have all my docs in order, just like the law asks.

They are more than welcome to come inspect tomorrow if they like.

Wow its now occurring to me you will say anything that pops into your head and speak like you actually know wtf you are talking about.

You could not be more wrong here.

"Court settlements" are between plaintiff and defendant. They are not part of the Court record. What is part is where on the record the parties tell the Court we have settled. Actual terms of settlements are never filed as part of the Court record unless someone is really fucking up.

The DOJ CANNOT back out of their agreement. No Court would allow this. This is very very old case law too and its so settled I cant see where t f you get this from. Lemme throw out the thumbnail sketch why this is old settled law. Its against public policy to let the prosecutors welch on deals. To allow them to welch would create havoc as then no defendant could be sure of their deal and most cases would go to trial. Our Court system worldwide cannot go forward with 100% trials. that would result in you getting your trial maybe before you die of old age if you were lucky.

scoreman - I think it's pretty safe to say that we all hope that you are correct on that assumption.

There's alot of speculation going on right now, but in the days to come it'll certainly be good to hear from the actual "powers that be" exactly what their reasons were for making this "deal", and how it's going to benefit us in the longrun.

And they do need this law to fight CP.. If they didn't that NY case would have ended with a CP bust. For some reason it didn't and it ended with a 2257 bust.

That's pretty clear cut.

Now they can easily say that whomever they are checking out has had an extra month and a half to get their regs in order, let's not forget they had a year prior assuming this went into effect when it was supposed to this time last year.

I hope score doesn't mind me saying.. But scoreman "is" a lawyer.

GatorB....there is nothing wrong with your opinion...but sadly this is why we are in this boat in the first place...we cant even join together or trust a group to speak on our behalf. So divided we just get sniped off one at a time. We are such a large industry that makes so much money, and its this attitude by most everyone that keeps us stupid and weak.

I have always thought that together we concur and divided we fall ...badly.

Why do you think Lensman is now jumping in to support the FSC? He is a very smart man and sees the future, and at this point we are taking major fire ...... :2 cents: