New rules on 2257
This was posted by on elsewhere today and is VERY IMPORTANT.
What is different? What are the new requirements? Full text can be found at: http://www.regulations.gov/freddocs/04-13792.htm Here are some major points that pertain to webmasters as secondary record keepers: a.. Internet Definitions. To bring the regulations up to date with the 2003 Amendments, the definition of a producer has been modified in proposed 28 CFR 75.1. Persons who manage the content of computer sites or services are considered secondary producers. a.. A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, a computer-generated image, digital image, or picture, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the content of a computer site or service that contains a visual depiction of, actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. a.. Proposed 28 CFR 75.2(a)(1) would require computer site or service producers to maintain a ``hard'' physical or electronic copy of the actual depiction with the identification and age files, along with and linked to all accession information, such as each URL used for that depiction. This ensures that all of the data about all of the people in the depictions can be accessed to ensure that none of the people in the depictions are minors. a.. 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. Such a secondary producer shall also keep records of the name and address of the primary producer from whom he received copies of the records. You best keep up with this. |
Is this a law yet?
I guess it soon will be since apparently US congressment don't read any of the bills. |
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spaz |
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Not just saying we have the address of someone who is the Custodian. How do we know the documents are there, how do we know we can get them and how do we know the models are 18+? I know of photographers who have people selling their content on the net, content we rejected because of the documents. Did you know one content provider gives a dead person as the Custodian of Records? |
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So does this essentially mean that content providers will have to photocopy and send out copies of every model's driver's licence to every single webmaster that has purchased sets of that model? Isn't that a bit of a breach of privacy for the models? And it's a lot of mail to catch up on, for all the content I own. :( Is there an industry advocate who goes to the US congress and lobbies about the effect this kind of legislation will have? |
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Yes I think it means you will have to get the documentation for all the content that requires it. If your lawyer told you not to bother, blame him. If you did not ask a lawyer blame yourself. |
Paul - do you know if this will be retroactive? I have a shitload of content & I have all the licenses & whatnot that were required by the old law - but it'd be a huge pain in the ass to go back & get the new documentation that is now required on all this content.
Also, here's a thought - my local cable company has a few porn channels - if I'm reading this correctly, they'd now be required to maintain records on all the movies & shows they rebroadcast - that'd be a huge pain in the ass. |
GreenGuy, I'm not a lawyer so don't take this as fact. But as I see it it will not retroactive. But any icontent you publish after the date of the change will be effected, regardless of when you bought it or it was shot.
So if you do not have the 2257 docs. go and get them, if you cannot get them take the content down. If you published adult content without 2257 docs on the advice of a lawyer, blame him. If you did not ask a lawyer look in the mirror and blame HIM. Your cable company have the documents, it's only the Internet that runs itself like this. |
As someone who used to work for a major TV listings company, I can tell you, the cable companies do not have the 2257 documentation. They do the same thing we do when there is a problem. Point to the folks who produced the porn in the first place. The bill's intention is to force all 'secondary producers' to ensure that we are dealing with legit producers who themselves gather this data. Obviously we can't meet the models (as nice as that would be) so our responsibility is to deal only with those we are absolutely positive are doing business by the letter of the law. We must be able to produce the records in a timely manner if requested, but no one is going to kick down GreenGuy's gilded door and demand the records on the spot.
The sky in not falling. The clouds are just shifting a bit to the right. |
I'm gonna have to get with a lawyer on this, because if it's like the original 2257, which has this disclaimer:
"Some of the aforementioned depictions appearing or otherwise contained in or owned by Greenguy Marketing contain only visual depictions of actual sexually explicit conduct made before July 3, 1995, and, as such, are exempt from the requirements set forth in 18 USC 2257 and CFR 75." The I'd have to assume that any content produced before today (or whatever day) would have a similar rule. Now, with the cable company thing - the movies/programs they show have basically the same 2257 that we have on the websites & it's displayed before and/or after the show. So the cable company doesn't have the actual 2257 material, just a license & the info, as required by the old law. So now, they'd have to have copies of all the performer's ID's & whatnot, which is a lot of paperwork :) |
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Well I sold to Adult Cable TV and they insisted on having the documents.
Ask a lawyer and see what he says. |
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The rule talks about "visual depictions of actual sexually explicit conduct " and exempts "visual depictions of simulated sexually explicit conduct" It seems to me that softcore and mere nudity aren't subject to the recordkeeping rules. |
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I forgot the content provider told you it was. LOL They may list someone else as the document holder, but to assume they publish without seeing the documents is so ludicrous it beggars belief. Please show an organisation run that badly, my lawyer is looking for work. |
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Model release to prove the models/actors gave their permission. IDs to check the ages of anyone in an Adult Movie. |
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This also seems like it'd be a huge invasion of privacy for the models by sending copies of their ID's to 1000's of webmasters. I should really shut the fuck up & see if I can get JD from XXXLaw.net over here :D |
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The date is effective as of 6/29/04? As a side curiosity, what about dating/matchmaking sites and picture rating sites like hotornot? If it's not nude, it doesn't fall under 2257 does it? If it's a nude pic then it is subject to 2257. So, sites like adultfriendfinder will need solid 2257 info on every person who submits a naked pic *and* a link to that documentation. Whoa. What about people who use free content? Paysites will be required hence forth to include 2257 documentation in the free content downloads? Basically, if you publish naked content on the 'net and live in the US, then you need to become a secondary custodian of records. It's simply putting more liability (hence responisibilty) on every single free site out there. Say goodbye to the part timers based in the US. As a broad stroke, I sorta think it's good to force 'us' to be more responsible. It will weed out those who aren't serious about the business and take things very casually. Will Link Lists now require links to 2257 info for every submission? Quote:
How will models feel about sharing their drivers license or passport photo with the entire world? Wouldn't blocking out their address be a modification on the document? Meaning, is there verbage in the law that allows one to black out their address? Has to be for seconday producers. I would think. Where is the link to the actual code? Where are you quating that from, Paul? |
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matrix includes a license pic, but that doesn't include the model release form. But, if one needs to link to it, then every content producer must link to all the required 2257 info whether it is purchased or not. So, from now on every content provider and paysite that provides free content must link to all 2257 info. Model ID's and release forms are public domain. |badidea| |
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Of course, it's easy to see that it's a good practice to have model releases/contracts/licenses/etc on hand for any sort of content, but this is seperate issue from the specifc recordkeeping and labeling requirements of 2257. |
Yes, get someone who truly understands the law to give us some interpretations. I think these threaded conversations by laymen only serve to spread hysteria and false assumptions are stated as law. Pedantic assertions will get us only so far...
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My last piece of advise on the matter.
GO SEE A LAWYER I've shown you the problem and some seem to want to avoid keeping a few records. As I read it and I'm not a lawyer, you publish porn you need to know the model is over age, consented to be published and ready to show the documents when/if the authorities ask for them. I've been 2257 compliant over 15 years and it really is not a problem doing it. Assuming you buy from a content provider who will supply them. |
I agree Paul.
I think webmasters who deal with building free sites, LL's and TGP's are wondering about how to provide the information in practice. On free sites with banners that are explicit, there may need to be a link to 2257 info on the model(s) of the banner. Voyeur sites will look pretty silly linking to 2257 info. Basically, even if someone has bought content from just you for everything there will be a lot of work to do and specifics to sort out. Putting 2257 info in every instance where there is a model will take away from the fantasy. What about video box covers and print screens? On Demand video (AEBN), web cam sessions, MPG's, WMV's, etc... How much money would it take for someone like AEBN to become compliant in practice? The proposal even covers USENET transmissions. Even if one is 100% 2257 compliant in *their* content, to actually comply with this code in practice will be a bitch and a half. |
Well so far it all looks like good news, no more sites trawling Usenet for content..|smooch|
No more people assuming that the guy who sold it to them is straight and has the records. Box covers are alright because they they have the 2257. Voyeur sites will have to hide it a bit, but at least it will stop people putting up content that is not agreed to. You film your next door neighbors having sex in their garden you can no longer publish it. Yes some of the Lease Plug Ins might have a problem. But will it cost us one single surfer? Will it get rid of a few idiots? Could be a blessing in disguise. |
Greenguy wrote me this morning inviting me to take a look at this thread, and seeing all of the confusion, I'm glad I did.
The posts suggest much confusion that can be at least partly relieved by looking at the existing regulations and the parallel provisions in the the new, proposed regs. No, they are not in effect now. Many of the provisions getting the loudest response are essentially provisions that have always been there - I'm talking about the secondary producer requirements -expressly for video and magazines, and by necessary implication for the Internet. There is an issue as to whether the secondary producerr requirements are valid. The only courts to condisder the question answered in the negative in the Sundance Case. But the issue cannot be said to be finally disposed of, and here the Justice Department is, reasserting the same provisions More information to follow in a publis.hed article (and even more to our retaining clients!) |
I just read through board tracker with all the threads you started. :)
A blessing? Perhaps in a roundabout way. To you- clearly. I'm glad I just started out. :D Regarding the box covers- someone will need to scan all the documents then load them to a server and then go through all the products where there are pictures and link to a copy of the 2257 docs. I tend to think responsible companies will tend to lean more towards the safe side and just document everything. I read it (85%) and still am not sure if it is retroactive or not? It's gonna be a bunch of shit for a lot of people and companies. What is the kicker is that electronic versions of documents can very easily be manipulated. |sad| Oh, well. |
Jim - you pointed out the most important thing that has been missed here - this is proposed legislation - that means that it has to go through the standard public comment period, then once it gets to congress, it has to pass both bodies, and then "maybe" it will be published in the Fed Registrar as a real law. Of course, it will then more than likely be challenged in the courts which will "probably" reverse it or at least stop it from being enforced until the suits can be answered which will take way longer than the people sitting in office have left in their terms :)
Its a good idea to know exactly what 2257 does and how it affects you right now, but until the comment period is over for the proposed regs, and all of the comment are incorporated into the revisions, its probably not something to get all fluffed about today. |
Jim didn't comment in this thread unless he did then deleted it.
There were a few comments on other boards that indicated it's not a new law but additions to an existing one. The inference was that it would go through. But it's all webmaster speculation. :D xxxlaw, So, this can very well be opposed and tossed out? |
To clear up serious misunderstanding:
1. It is important to understand that this proposal DOES NOT go to Congress. Congress gave authority to DOJ to promulgate regulations to impliment Section 2257 at Section (g) of the Act. 2. When the Attorney General promulgates it, 60 days from publication, it is a "real" law. Your opportunity to challenge it on any grounds is NOW. Full email address of the person to whom to address comments is in the proposal, found on xxxlaw.net. 3. You cannot assume that anyone will file suit to protect your interests nor that a court will grant an injunction to stay its enforcement. 4. It is downright wrong to believe that the regulations will have no effect when the present incumbants leave office. The existing regs were promulaged by J. Reno in the Clinton Administration and remain on the books until or unless repealed or amended. |
JD Obenberger,
Thank you for using some of your valuable time to give us all a freebie here and clarifying some important points. |
I second that!
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JD - 1st off, thank you very much for stopping by - we do appreciate it :)
Now, let me see if I can ask a few questions that I think are on all our minds: 1 - the old law stated that the only person that could legally ask for the 2257 info was the Attorney General him/herself. Is that still true? If not, what gov't agencies can ask to see the documents? 2 - I think most of us that have purchased content in the past have posted the 2257 info on our domains & then just filed away the license in a drawer. This was taken from your page at http://my.execpc.com/~xxxlaw/primer.html : "...The Statute and Regulation in question, taken together, require that records, when they must to be maintained, be maintained on a content producer’s premises...." Does the law define a "content producer" as the one that shoots the content or would I be considered a "content producer" by buying a license to the images & using them on my website? I of course have a few follow up questions based on your replies to those 2 :) |
1. Section 2257 at para. (c) requires that any person who is subject to the Act will make the records available to the AG at his place of business at all reasonable times, and it gives the AG power to create rules regarding the kind of records to be maintained. The old reg at 28CFR75.5 requried that covered persons make the records available to the AG "or his delegee". The power to delegate this is something that is surely implied in the statute. The AG's involved since enactment - Reno and Ashccroft - never delegated the power.
2. I wrote in the Primer: "The producers . . . must create certain records of the name and date of birth of the performers, those records must permit the retrieval of information by the various names of the performer and by the name or number of the work, ..." and so indexing is mandatory. The validity of secondary producer requirements is complex and disputed - and the debate is discussed in the Primer. The new regs perpetuate this old issue. |
Just a bit more on my way out the door . . .
The whole issue of who is a person who "produces" is the key to solution of the question of the validity of the secondary producer issue. Congress says 2257 only applies to a producer, and it largely defines a producer in negative terms of who is not a producer - and though its language is torturous, it seems plain to me and plain to at least the Tenth Circuit that someone with no connection with the images except purchasing them from a middleman as already made is not the kind of person that Congress meant to include. This is a very complex - and dangerous issue - and I've always advised compliance by webmasterwith the secondary producer requirements even if its legitimacy is a matter of some legal doubt. Get the records and have nothing to do with original producers who won't give you the records. Glad to read Paul M.'s comments. I've seen his excellent 2257 records supporting his excellent content as I've done 2257 reviews for clients. |
Ok - that makes things, ummmm, still unclear - LOL - but I do understand what you are saying.
Is it safe to say, to sum things up, that we should get any & all documentation on the content that we have in our posession or buy in the future? |
Good stuff....
Time to sell and avoid the bullshit. Looks like everyone will need about 3000sq.ft to hold filing cabinets and logging info, paperwork, etc. Perhaps holding the models depicted in the acts captive for eternity in a backroom might be a good added leverage too. |
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To not do so would be plain stupid IMO. |
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