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