Another 2257 Question

[Jasin]

Hi all, I've read the law, like that wasn't confusing enough, and searched the forums here and am still confused.

I run an adult message board for men. This is a non commercial site. I have included a photo album where members can post photos of themselves. These can be face, nude, or include some action shots.

Has it been determined what my responsibility might be in this instance? I am not producing the content, just allowing members to post their own photos. This would be the same as any Yahoo group where files can be posted to the group. Is Yahoo liable, or the list owner, or the person posting the photo?

I read so many conflicting opinions, that I disabled the photo album on my site until I can get some clarification. I'd appreciate any advice from others who might have similar situations.

Thanks!

[gaybucks_chip]

Standard disclaimer: i'm not a lawyer, so take my advice with a grain of salt.

but the answer is that right now there's no answer.

The new 2257 regs that went into effect on june 23rd require anyone displaying a sexually explicit image on their site to have a proper ID and other 2257 requirements for each model depicted in a sexually explicit photo.

So if you have people uploading pics of them fucking somebody, you are required to have docs for each of those photos, and it's jail time if you don't comply, even for a single photo.

Here's the rub: The free speech coalition has filed an injunction saying that secondary producers (people just displaying images that they didn't produce) shouldn't have to do this based on a previous appellate court decision. But it's been two months now, and the judge has not ruled in the case.

So everyone is in limbo. I think most people are complying with the new regulations as they stand until they absolutely know otherwise. A few are blindly assuring themselves that the injunction will be granted and not worrying about having IDs.

If it were me, I'd err on the side of conservatism and assume that your site needs to be compliant with the new regs.

[Happysucks]

So if you have people uploading pics of them fucking somebody, you are required to have docs for each of those photos, and it's jail time if you don't comply, even for a single photo.

But is this all it boils down to? Solo nude, non erect photos are fine?

I know one cannot give a 1) this 2) that - example as its not been issued in a hardcopy guideline but without knowing what is safe, the questions are never honestly answered.

Can anyone give an answer of what is KNOWN to be safe?

[desslock]

Jasin

What it means is that 2257 is not like a law you are normally expecting, like say the law that provides a penalty for driving while intoxicated, or that you must file your income taxes by April 15.

The regulation is long, complex, contradictory in parts and has been taken to court.

I watched The People vs. Larry Flynt on HBO recently, and enjoyed watching him be told that he could not print a Beaver Shot in Hustler, so he went ahead and did so routinely.

Not being a lawyer either, I'll wager that some federal attorney can decide to arrest a website operator for not having 2257 records. And then another Federal attorney can go ahead and arrest a website operator for not keeping them correctly, even though he had them. It doesn't matter that he tried to comply or not.... they can still choose to go after someone.

Look at what Attorney General Elliot Spitzer does in New York - he looks at people with targets on them first and foremost, not really whether they are doing something criminal. Legal prosecutors can throw darts towards you as the center the dartboard. Maybe a prosecutor somewhere wants to run for Governor. All business carries risk, and the adult business is riskier then most.

Look - the government will probably say that websites with explicit pics are supposed to have 2257 information properly indexed. But that does not mean you cannot argue in court that is an improper application of the law. The feds said that you couldn't burn an American flag in public for decades until the Rehnquist Supreme Court in the early 1990s decided otherwise.

Steve

[desslock]

Or maybe think of it this way. Note that as time passes, the 2257 regulation becomes longer and more complicated as the Department of Justice lawyers continues unending claifications, as we exercize our rights to appeal the law.

They say that an infinite number of monkeys working for an infinite amount of time will at some point write the script for Hamlet.

But in this case, an infinite number of lawyers working for an infinite amount of time will simply create the script for the movie Showgirls.

Steve

[gaybucks_chip]

basically, if you don't display "actual sexually explicit conduct" you are exempt from 2257. So you should definitely be safe showing, for example, nude guys without erections, guys kissing or hugging, that sort of thing.

There's a conflict among some of the adult industry attorneys as to whether an erection alone constitutes a "sexually explicit" photo. Some say that it does, some say only if the model is touching himself is it explicit.

And penetration (oral-genital, oral-anal, genital-genital, genital-anal, etc) is definitely explicit.

Also, keep in mind that the new regs say that it's not just the image you display, but the *source image from which it was cropped* that counts in determining if the image is explicit. So, for example, if you crop a pic of two guys fucking with obvious penetration so that you're showing only their faces, the image would be considered sexually explicit because the image from which it was cropped was explicit. How they intend to enforce this, I have no idea, but those are the regulations.

Hope that helps.

[ponyboy]

Myself and I’m by no means a lawyer is. If you have any kind of nude anything. Have the paper work for each model filed away. It’s safer, then to be sorry if the law stands the way it is.

[gaybucks_chip]

Myself and I’m by no means a lawyer is. If you have any kind of nude anything. Have the paper work for each model filed away. It’s safer, then to be sorry if the law stands the way it is.

Just to clarify, nothing in the 2257 law or regs (current or prior to 6/23/05) has *ever* required docs simply for nudity. 2257 relates *only* to sexually explicit content, and the justice department just clarified in one of their communications that non-sexually explicit nudity would not be covered under 2257.

That said, I think that if you're the primary producer, you should always have docs, even if the model is clothed. It's just easier and safer, and eliminates any possible issues. But if you're a secondary producer (displaying somebody else's images to promote their site, for example), you may not have access to those docs, so if you play smart and safe and avoid sexually explicit content, you should be fine.

[A_DeAngelo]

Remember the Mapelthorpe issues with Jesse Helmes back in the late 80's? (thanks Jesse, our
Maplethorpes shot up like a rocket!)

Kinda sorta the same kinda thing.

Our attorney suggested that we imbed all the appropriate 2257 compliant info in our photos so that the info will "follow" the photos/jpg's, whatever wherever they might go.

Our liability STOPS after those images and the appropriate documentaion leaves our office.

What people do with the info (delete it, remove it alter it) is not our problem because we maintain accurate source information right here in our office.

If the feds want to stick you - they will.

We were told that a ruling in court could be based on the judge's findings on something as miniscule as the improper posting of "the date of production" - since this portion of the ammendment is unclear - the interpretation being either the (date) eg: July 1, 1999 of actual photo shoot or last day of filming or the date of photo re-touching or the (date) month and year, etc., etc., which all boils down to which definition of date the judge decides he will use that day in court... kinda big loophole for da judge, huh?

I'm not an attorney but, I've played one in our sex movies... and my gut reaction would be to ask that members' photos on your site be limited to non-explicit material... why invite potential hassle?

Although this does attack our constitutional freedoms under the First Ammendment!!!!

It may keep us out of trouble (prison sex is kind of a fantasy of mine and I'd rather keep it a fantasy!)

[Lee]

Based on what our attorneys have told us, you'd probably fall under the same category as we do with GWW meaning, you cant reasonably be asked to provide 2257 documents for user uploaded images that you cant maintain a 'constant' control over.

Id speak to your own attorney and have them evaluate the risks for you but, based on what we have been told, we arent required to hold 2257 docs for images that GWW Community members post on here because, in effect, we're offering a hosting service to them and, under the new regulations, hosting services are excempt fro the 2257 regulations, to a point.

Regards,

Lee