2257 - What's new isn't really new.

[Matt 26z]

Secondary producers having to keep age docs does not kick in at the end of next month. It's in effect right now and actually has been for years.

Everything relating to secondary producers being required to keep age docs in the new regs is a COPY AND PASTE from the old regs. Nothing new here.

Even when the draft of the new regs was published a year ago, they stated that who they effected was not changing.

So this brings up questions.

Where was this panic 3, 4, 5... years ago?

Why did we never see industry lawyers saying that THOUSANDS of secondary producers were in violation?

[basschick]

the panic is because secondary producers weren't required to be custodians of records. and of course, the way webmasters will be required to store and cross index the records is way over the top.

[Squirt]

Secondary producers having to keep age docs does not kick in at the end of next month. It's in effect right now and actually has been for years.

Everything relating to secondary producers being required to keep age docs in the new regs is a COPY AND PASTE from the old regs. Nothing new here.

Even when the draft of the new regs was published a year ago, they stated that who they effected was not changing.

So this brings up questions.

Where was this panic 3, 4, 5... years ago?

Why did we never see industry lawyers saying that THOUSANDS of secondary producers were in violation?

Eh... yeah... nothing new in the new regs :thumbsup:

[Matt 26z]

the panic is because secondary producers weren't required to be custodians of records.

Can you please point out what parts in the new regs explain this that were not in the old regs? I'm not seeing it.

[Matt 26z]

When they state who must keep records, they always refer to "any producer" which implies both primary and secondary. This was in the original regs and it didn't change in the new regs.

Plus this is directly from "Sec 75.2 Maintenance of Records" and it's a copy and paste in the new from the old. So if it was not a requirement for secondary to be custodians way back then, then what is it?...

(b) A producer who is a secondary producer as defined in Sec. 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in Sec. 75.1(c), copies of the records described in paragraph (a) of this section.

[JustMe]

Greetings:

Ok Matt, the problem that you're having, is that you're reading the Regulations used to enforce the provisions of the law, and not the actual law itself.

The reason why the "secondary producer" hasn't been keeping records, is that the law doesn't define a "secondary producer". The law defines a producer as someone that is:

"involved in hiring, contracting for, managing, or otherwise arranging for participation of performers depicted in sexually explicit material"

That's what the LAW reads. You can quickly see why most webmasters and the like believe that they don't fall within that definition. In the past, the courts have agreed, most notably in:

Sundance Associates, Inc. v. Reno, C.A.10 (Colo.) 1998, 139 F.3d 804

Where the courts virtually flogged the DOJ for their regulations being far removed from the statute that they were written to enforce. This of course served to bolster the industry's opinion that a "secondary producer" doesn't exist, and certainly shouldn't be required to keep records as they are not "involved in hiring, contracting for, managing, or otherwise arranging for participation of performers depicted in sexually explicit material".

The "new regs" that people are talking about now, is basically the first time we've heard anything 2257 related from the DOJ since that ruling. Their reaction, if you read the comments that accompanied the new regs, is that they do not agree with Sundance Associates v. Reno, and that THEY claim that they have later caselaw that supports that position.

However, most of the attorneys out there take the position that this later caselaw doesn't even directly refer to the issue of secondary producer as related to the actual statute, much less toss out Sundance.

American Library Assistant v. Reno, C.A.D.C.1994, 33 F.3d 78, 308 U.S.App.D.C. 233

[Matt 26z]

It does define secondary producer in the original regs in 75.1 c...

------------------------
(c) Producer means any person, including any individual, corporation, or other organization, who is a primary producer or a secondary producer.

(1) A primary producer is any person who actually films, videotapes, or photographs a visual depiction of actual sexually explicit conduct.

(2) A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct.
------------------------

So pretty much after Sundance everyone (including me) just assumed that the DOJ's ability to enforce that part of the regs was deminished...... But if it really was diminished and no secondary producer language was drastically changed in the new regs, then what makes people think they can now surely enforce it all of the sudden?

You'll see in the Sundance documents that the language that got them off is actually still there in the new regs. They didn't even bother to update that.

[Huskyhunks]

Here's part of an interview at ynot that addresses this issue:

" Obenberger sees the secondary producer requirements as the most potentially damning – and potentially challengeable – of the requirements. “My biggest criticism of [the revised regulations] is their reliance on American Library Association v Reno,” he says. “The secondary producers requirement is not new. It’s been there from the beginning, and the reasoning behind it is that when the law was passed, magazines and video companies were the ones required to keep the records. Publishers and video companies tend to last when photographers may disappear like a cloud, so the requirement made sense as far as being able to track the records well into the future. The problem is, Congress did not give the Justice Department power to enforce the regulations on seconday producers. That's beyond their authority – but that doesn’t mean they won’t act on what’s in the regulations until a court tells them not to.”

That may prove to be the rub. The Free Speech Coalition (www.freespeechcoalition.com) is working to challenge the regulations on a number of legal grounds, but no one is sure yet if the challenges can be heard in time to prevent arrests or the mass disappearance of “undocumented” content from the adult Web. “I’m not even sure an injunction is going to stop the inspections,” Obenberger says, noting that he expects to see inspections and arrests starting June 24, the first day the Justice Department can enforce the revised regulations. “[An injunction] might stop prosecutions, but it won’t stop the inspections. There is some reason to believe people are going to be arrested and charged as soon as possible.”

I think this should shed some light on why it's such a big deal now.

[Matt 26z]

... I think some of you are missing my point. Which is two things.

1) If Sundance really did set a damning precedent against the secondary producer portions of 2257, then a near copy and paste re-release of those portions of the regs does not change that. The precedent was there against the old regs, and it still exists against the new regs since language hasn't changed.

2) If Sundance did not set a precedent against the secondary producer portions of 2257, then every secondary producer webmaster has been in violation of this part of the law for years.

It's either one or the other, and the new regs don't influence which instance is the true one.

POINT BEING of this thread, if you are a webmaster who believes the secondary producer portions of the new 2257 effect you, then you don't have a few weeks to comply and become custodian of records. You are breaking the law TODAY since it's always been there.

[Huskyhunks]

In your original message, you asked why there wasn't a panic over existing regulations. I remember many attorneys warning all secondary producers to comply "just in case" these laws were ever to become enforceable. Just check Ynot and you can find at least 10 legal articles warning webmasters to comply with all 2257 in place. We were told not to really on Sundance, to play it safe and keep records.

Keeping copies of proof of age records, model releases, etc, getting the necessary paperwork from primary producers really isn't a big deal. Most webmasters have kept those kind of records all along just to be on the safe side.

I took my site down because I have absolutely no plans to cross reference every image with every model, save hundreds of copies of my entire site, post models personal information or my own. It's very easy for me to simply take my site down.

I don't believe the "panic" has anything to do with proof of age records.

[Squirt]

POINT BEING of this thread, if you are a webmaster who believes the secondary producer portions of the new 2257 effect you, then you don't have a few weeks to comply and become custodian of records. You are breaking the law TODAY since it's always been there.

You make a great point there. The secondary producer issue is only part of the equation. The other stressor here is the bogus filing system they are now requiring that demands redundant copies of content and duplicate files for performers that are shot more then once or have aliases ( depending on which attorney is deciphering the regs for you ), and this is just for the primary producer.

It seems the new regs have been created as a retribution for being in the adult industry, no matter how honest, straight laced, and by the book you may be, you will not know how to fully comply with the vague regulations, and risk arrest and prosecution.

Not to mention the violation of right to privacy by being forced to publish your name and (what could be your private residence) address on a worldwide adult website. Somehow it doesn't seem legal that a private residence, where children reside, must be listed on a worldwide porn site.

By law my corporation can assign a registered agent to communicate on my behalf and these regulations are trying to take that right away without due process. I'm all for getting the bad guys.. but putting good people, and innocent children, at such risk isn't the right way to do it :extat: