Quote Originally Posted by basschick View Post
wrong.

i've talked to several lawyers about this, including chad. my understanding is probably fuzzy, but the bottom line is that because the videos are digitized, they count as a new production, and a new production requires 2257.
Patti, I respectfully disagree. Your information was correct at the time of the 6/23/05 regs, but my interpretation is that they finally clarified and fixed this with the revised regulations published 7/12/07 (28 CFR 75.1 (m)), which states :

"Date of original production" or "original production date" means the date the primary producer actually filmed, videotaped, or photographed, or created a digitally or computer-manipulated image, digital image, or picture, of the visual depiction of an actual human being engaged in actual sexually explicit conduct.

It's still not perfectly worded, but I believe the intent is for that to mean that "date of production" is finally defined as when the content was actually shot, not when somebody messed with the image.

To define it in any other way -- as was allowed in previous versions of the regs -- guts the entire value of 2257, as otherwise, one could simply shoot somebody who is 16, wait until they are 18 to manipulate or digitize the image, legitimately put a "production date" using the date the digitization was done, and be legally in compliance with 2257, while still filming underage content. So for that reason alone, I'm confident that the intent of the newly revised definition is to fix "date of production" as the date the content was shot. I seem to remember there being concurrence among several of the First Amendment attorneys on this point, but I can't say that for sure.

Prior to the AWA, "Date of Production" was defined as a whole bunch of different (and conflicting) things, and the 6/23/05 regs did, as Patti says, directly state that one of the acceptable definitions was the date content was reprocessed or digitized.

So if the newest regulations, and my interpretation of them is correct, and "date of production" is, in fact, the date the content was actually shot, not the date it was digitized, then any exempt content can be uploaded, digitized, reedited, and used without the need to comply with current 2257 regulations. The fact that a number of companies have, in the past year, come out with a bunch of newly digitized content that was shot prior to 7/1995 would tend to imply that they, also, support this definition.

As always, it's a matter of what your own level of risk allows. We don't currently own any pre-2257 content, so it isn't really an issue for us, but we have considered doing some projects involving older content, which is why I've tried to keep on top of it.

If anyone has any more up-to-date info, or opposing views, I'd love to hear them, as I don't think *any* of this is a settled issue.