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18 U.S.C. § 2257 FAQ (history, issues, etc).

topic posted Wed, December 7, 2005 - 11:29 PM by  JohnManyJohns
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www.eff.org/bloggers/lg/faq-adult.php
Also: www.eff.org/deeplinks/ar...es/003741.php

The first link (above) will take you to the EFF's FAQ on blogging and 18 U.S.C. § 2257. *It is equally pertinent to the Tribe context*. The EFF's FAQ provides a short history of the issues, the relevant court decisions that inform them, current DOJ interpretations, and current efforts to fight both the law and the activist DOJ.
posted by:
JohnManyJohns
SF Bay Area
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  • Unsu...
     

    Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

    Wed, December 7, 2005 - 11:33 PM
    "18 U.S.C. § 2257(f)(4) makes it a crime for a person "knowingly to sell or otherwise transfer" any sexually explicit material that does not have a statement affixed. As noted above, this does not include noncommercial distribution."

    anybody paying for tribe?
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Wed, December 7, 2005 - 11:47 PM
      The issue is primary and secondary producer status, is there a distinction. In essence, (in 1998) the Tenth Circuit Court decided there *was* a distinction between Primary Producers (for example: porn companies) and Secondary Producers (for example: Tribe posters, bloggers, etc.), and that the latter was not required to keep over-18 records. The current DOJ (not a court) has interpreted an earlier court's decision (made in 1994) to create a lack of distinction, lumping primary and secondary producers together, requiring both categories to maintain over-18 records for published material.

      ---From the EFF 18 U.S.C. § 2257 FAQ---
      Q: What have courts said about record-keeping requirements?
      A: In Sundance Assoc., Inc. v. Reno, 139 F.3d 804 (10th Cir. 1998), the Tenth Circuit rejected the prior regulation's distinction between primary and secondary producers and entirely exempted from the record-keeping requirements those who merely distribute or those whose activity "does not involve hiring, contracting for, managing, or otherwise arranging for the participation of the performers depicted." 18 U.S.C. § 2257(h)(3).

      However, the DOJ takes the position that American Library Ass'n v. Reno, 33 F.3d 78 (DC Cir. 1994), "implicitly accepted that the distinction between primary and secondary producers was valid" and that "the requirement that secondary producers maintain records was not a constitutionally impermissible burden on protected speech."
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 12:02 AM
      >> anybody paying for tribe? <<
      It's not that simple. A web site selling banner ads (like Tribe does) is enough to constitute "commercial distribution." Did you think they were doing this for free?
      • Unsu...
         

        Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

        Thu, December 8, 2005 - 12:26 AM
        Of course I didn't, Fred.

        Tribe is exempt from this statute in previous rulings which the DOJ is challenging right now by broadening its enforcement.

        Tribe has a case for not having to buckle.

        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Thu, December 8, 2005 - 12:50 AM
          >> Tribe is exempt from this statute in previous rulings which the DOJ is challenging right now by broadening its enforcement.

          If they are exempt, it is because they are a "secondary producer", not because they are noncommercial (which they are not). Whether people pay for tribe or not is irrelevant. (Sorry if I'm a little testy, but there's just been so much explosive hyperbole thrown around today, I would really like to get to the nuts of the problems.)
          • Unsu...
             

            Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Thu, December 8, 2005 - 12:55 AM
            And I only have one hand to type with today due to CT release sugery this morning. So I only have patience to type one-liners.

            (Well, few-liners)
            • Unsu...
               

              Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

              Thu, December 8, 2005 - 1:09 AM
              Thanks for the legal interpretations.

              Here's a thought:

              Say for example if Tribe were a business administered and/or owned in the Netherlands with their servers located there.

              Would a Dutch entity have to be in compliance with Re: 18 U.S.C. § 2257 and/or the "most stringent" community standards?

              I think that the legal basis for what has happened today is somewhat of a ruse.

              If such a hypothetical entity were not required to be in compliance with these "issues," would the same announcement have occurred.

              Mebbe.

              I think this is about money. The entities with the money who have an interest in Tribe are trying to control the content, expression and interaction of those who have *chosen* to participate here perhaps?

              ~MTS~
              • Money

                Thu, December 8, 2005 - 1:27 AM
                In the interest of keeping this thread about statutory issues, I would urge starting a separate thread about the money issues ... starting with an explanation of how, if this is not about legal pressures, this is about money. I.e. how does "controlling content, expression and interraction" make them money? And if it does, you'll have to explain why Tribe (the company) should *not* do it.
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Thu, December 8, 2005 - 1:46 AM
            There are three layers of production, two classes of producer: Third Party Content, Tribe Corp., Tribe posters. Even if Tribe Corp. was deemed a Primary Producer, its posters could still be considered Secondary Producers. However, this doesn't matter much if the distinction between primary and secondary producers is collapsed by the DOJ in their interpretation.
            • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

              Thu, December 8, 2005 - 3:26 AM
              No, Tribe Corp. could never be considered a primary producer. By the def. in 2257, the primary producer is definitely the party who *creates* the material (basically the camera holder and everybody in the room).

              But many Tribe posters *are* "primary producers." A Tribe member who posts "art" pictures of himself with his girlfriend will, according to 2257, have to have documentation showing that said g/f was not 16 at time of photography. What the DOJ interpretation does is put Tribe Corp. in the awkward position of having to request a copy of that documentation from every poster. (Why DC Cir. didn't find this "onerous" in '94 is beyond me.) They may also (according to 13032) have to rat out the poster to the DOJ if another tribe member says "the female in that photo was only 16."
        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Thu, December 8, 2005 - 10:12 AM
          let me (as an employee) comment to the extent I can on some issues raised here. But let me first say that this thread is really superb, Tribe at its best even. I suspect some of you guys are lawyers!

          1. On whether we can move someplace outside the U.S.
          I suppose we could, though we didn't really view it as a practical alternative, much as I would like to live in the Cayman Islands.

          2. On why we bothered to implement privacy controls
          It's true that the legal environment has changed. But that's only part of the story for us. The other part is that we really do want to create an environment of respect for everybody on our site. So yes, there are some kinds of content that just shouldn't be on tribe, for reasons that should be clear to readers of this thread. But there are still judgment issues there, and so we encourage people who are posting content that they worry might be over the line, but are unsure, to use the privacy controls to at least give the benefit of the doubt to the viewer.

          3. It's true there are challenges to the 2257 law.
          But we can't afford to be in noncompliance. We are a fledgling startup trying to make a go of it. If you want a company to take this law head on, it would need to be somebody with deep legal pockets.
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Thu, December 8, 2005 - 10:35 AM
            Thank you for this response, which I think is the most direct I have seen yet.

            I will say I am very disappointed in the attitudes expressed in your #2 point.

            I think the concept of "some kinds of content that just shouldn't be on tribe" is a fundamental shift from how tribe has been operated in the past.

            The primary thing that brought me to tribe was the BDSM and other sex-positive communities that are no longer welcome here.

            I also feel that although you are saying "we really do want to create an environment of respect for everybody" you really mean " we want to create an environment free of material that offends anyone."


            I ask that you continue to be open and honest. It does nobody any good to pretend that their tribe/blog/pictures may or not still be welcome, if the decision has already been made that their content must go.
          • Why TribeCo should focus on 2257, not on barriers

            Thu, December 8, 2005 - 1:43 PM
            Thanks for the response, Wade. I'm exactly with BayouBlue on this one. It's #2 that bothers me (and a lot of people) ... It bothers us a *lot*.

            Dealing with the legal issues is one thing and many of us recognize that you're trying to run a business so this is not a concern you can ignore ... my point in participating in this good thread is to try and find ways to deal with those legal issues. I don't believe it is merely a choice between fight or flight.

            But a change in general Tribe Co. policy to try and make Tribe more "respectful" of middle-America is a separate, *philosophical* issue that goes beyond legality, and (I hope to persuade you), is bad business. It says that even when the current Bush administration and climate passes on (and it will) that Tribe Co. is still interested in using hard barriers instead of soft ones to partition off areas of content. This destroys a key differentiating feature of Tribe that distinguishes it from its competitors.

            That change in philosophy will lose you far more of your customer base than your reaction to the legal issues. It's not just the kinky folk. Myself, I'm more interested in EPL Soccer and James Joyce than I am with BDSM and fisting ... but I can go anywhere to find forums on socer and Joyce. What keeps me at Tribe is knowing I can talk about Joyce with a dominatrix, or discuss Photoshop with a transgender photographer, or I can go from a discussion of AI, and stumble into a kink tribe and learn about doll fetishes. This *opens up* my world with uncommon connections and a constant reminder of common humanity. I know your reaction is that none of these discussions will be curtailed by these new measures ... but that's not the point. The point is that people on the fringes gather here and not elsewhere, and I get to meet them (and explore my own fringes), precisely because of the current climate of soft (viewer-understood) rather than hard (Tribe-enforced) barriers between regions of content.

            That's why I urge Tribe admin. to focus on purely legal issues like 2257, and try and invite Tribe members to help find solutions to those issues ... rather than simultaneously try to change the fundamental philosophy of how Tribe works ... which loses you not only a larger part of your customer base than you may realize, but a valuable resource of a huge number of allies against legal repression ... and loses this asset *precisely* when you need it most, when government is attacking the very lifeblood of your business (a forum for interchange and expression).
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Fri, December 9, 2005 - 5:15 PM
            Wade -

            Thanks for answering some of the concerns that have been circulating here - I have a few responses of my own... In regards to point # 2 that you made:

            "On why we bothered to implement privacy controls
            It's true that the legal environment has changed. But that's only part of the story for us. The other part is that we really do want to create an environment of respect for everybody on our site. So yes, there are some kinds of content that just shouldn't be on tribe, for reasons that should be clear to readers of this thread. But there are still judgment issues there, and so we encourage people who are posting content that they worry might be over the line, but are unsure, to use the privacy controls to at least give the benefit of the doubt to the viewer."

            That's great - honestly, I give two thumbs up and a pinky toe in wanting to provide an atmosphere that is comfortable to everyone here... That being said - Let's get down to some specifics here, shall we? As the owner of a "mature" profile, my choice to MARK my profile as mature allows for the creation of a respectful environment. If you think you may be offended by visiting my profile, since it's marked "mature", you don't have to click on it. Further, you don't HAVE to visit ANY of the tribe profiles, OR look through their photos if you don't *want* to. I'm all for making people feel comfortable, I really am. But honestly, it's not as though we're FORCING people to click on specific photos within profiles, or within tribe groups. It's also not as though we're FORCING people to join tribes that they may feel uncomfortable being a part of. There comes a point where making making people feel comfortable and painting the world beige begins to meld into one - and Tribe has just made several strides toward that in record time.

            In regards to point # 3:

            "It's true there are challenges to the 2257 law.
            But we can't afford to be in noncompliance. We are a fledgling startup trying to make a go of it. If you want a company to take this law head on, it would need to be somebody with deep legal pockets."

            Fine - don't be in noncompliance. And, honestly speaking, you AREN'T in noncompliance, as long as you, the owners of the company, aren't directly posting photos that are in violation of the law. I've looked at what the law originally entailed, and it was created with the intent to stop child pornography. I am a HUGE supporter of stopping the traffic of child pornography. It is absolutely wrong, and those who traffic it and/or download it for their own perverted uses should be arrested, fined, and locked up forever, never to see the light of day again - oh, and castrated without local anesthetic. Yes, I'm serious about this.

            The real issue is that the internet is the last place available in the world today where people can sign up under an assumed name, an assumed age, and get almost anything they want... If the issue you are trying to combat here is comfort-levels, and whether someone *might* be offended by content, then you need to understand a few things: There will ALWAYS be sites out there that blast you in the face from the get-go with material that may offend someone. Personally, I think the Billy Graham website is VERY offensive, but that's a different story entirely. I also think that a number of the pay porn sites are offensive, but that's due to the lack of curves on most of their female models - and again, a different story entirely.
            However - if the issue you are actually trying to combat here is the possibility that a minor, under an assumed name and age, will click on a mature profile and see something that may offend either them or their parents, then you need to start looking at the parents first. That's called standing up for Family Values. Personal responsibility first, guys. Taking a page from our dear ol' Prez Gee Dubbya, Family Values is more than simply just taking a stand for or against birth control. It's about teaching your children what's ok and what isn't based on what you feel is acceptable. It's about learning how to use the parental controls on your computer so that they aren't able to access sites that might contain questionable material. And if you, as a parent, don't trust your child to stay away from those sites, it's up to you, as a parent, to lock up the keyboard until you're there to supervisor your child.

            Deep legal pockets? Come on - the only thing that's honestly happening here is that you're trying to avoid someone becoming offended enough to sue you. It happens all the time in the business world, and most of the lawsuits are thrown out - why? Because when some user decided to click on a profile marked "mature" and then scan through the pics, they got offended... And why is it thrown out? Because the profile was clearly marked "MATURE". Big fat duh here, guys. Throwing the legal thing in here is a huge excuse with no major basis in reality. I should know - I've worked in enough high-level corporate companies to know what happens. Try again.

            If you feel, as a company, that it is your responsibility to be a moral babysitter for internet users of the world, then you need to change your name to Tribe.MoralityBabySitters.net - that way, everyone will know from the get-go that you won't accept anything that could possibly be construed as questionable. Picture of two puppies snuggling? Hmmm, couldn't have that on the website, now could we - could be construed as something OTHER than what it really is.

            You're making this FAR to complicated. You really are. Step back, take a deep breath, and look at the situation again. No, really. Take a breather, and look at it - REALLY look at it. If the profile, or the tribe, is labelled "mature", perhaps it's not for the likes of some people. That's just all there is to it. Really. No, REALLY.

            ~M
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Fri, December 16, 2005 - 6:20 PM
            <<2. On why we bothered to implement privacy controls
            It's true that the legal environment has changed. But that's only part of the story for us. The other part is that we really do want to create an environment of respect for everybody on our site. >>

            Good lord. Whose bright idea was it to implement the changes with respect to this in conjunction with the 2257 changes? Anyone who who was involved in that decision should be sacked for gross incompetence.

            In fact, I would seriously suggest looking into the possibility of them trying to sabotage tribe.net from the inside. In the past few days I've seen a lot of intelligent and thoughtful members of tribes I'm in unsubscribe themselves in disgust. Of course who knows if some of them will come back to try to disrupt the site, even though they never would've done so before. I've seen this happen on other sites, and shook my head in bewilderment as the admins seemed oblivious to the fact they were perpetuating the problem.
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Tue, December 13, 2005 - 1:56 PM
      Technically this seems to exempt Tribe, but given the political climate of the past 6 years, they are playing it conservatively to preserve their interests against radical fundamentalist activists, who seem to be bent at censoring anything that even remotely contridicts their sexually repressed world view. Deperessing for sure, but it's hard to blame them. I only hope we can find a compromise that doesn't trash the vibe on tribe, otherwise the future exodus is inevitable. We will see.

      Welcome to the Busy Body Politic!

      New World Odor... Same ole shite!

      ~jj
  • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

    Thu, December 8, 2005 - 12:46 AM
    First, JohnManyJohn ... thanks for an actual attempt to get at the issues.

    A key question is ... has Tribe (the company) correctly analysed its exposure (as opposed to the exposure of individual tribemembers).

    The EFF FAQ makes reference to 42 U.S.C. § 13032, which is very clearly targeted to organizations like Tribe (electronic communication service providers). But 13032 just says that Tribe (the company) would have to report any child pornography it finds or has pointed out to it. True?
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 1:03 AM
      where are the tribe administrators? to whom should we direct such queries?
      • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

        Thu, December 8, 2005 - 1:28 AM
        I kinda hoping that an army of Tribe members, many of whom are lawyers, might come up with something the Tribe administrators missed.
        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Thu, December 8, 2005 - 4:30 AM
          I kinda hoping that an army of Tribe members, many of whom are lawyers, might come up with something the Tribe administrators missed.
          ---
          That's kinda simple. Challenge the fricking law.

          This law has not gone up against any appelate court as far as I can tell, and DC Bar Journal, discussing this very law, suggests that it is outright unconstitual, as it does not protect privacyy. (course, privacy is about to be slashed as a concept by the seated court, anyhow.).

          SEems to me, as someone without my financinal ass on the line, that the answer is to say "ok, show me how you can inforce this" rather than caving into current threat law that the US post 9-11 anti-terrorism, and US (how did someone put it, sex-panic laws) legal pressures that are being applied.

          Corporations liek Tribe & Yahoo rightfully don't trust the US legal system right now, and are acting in a CYA way. But while i intellecually understand this, as a user of systems, it leaves me rather ticked. I can assure you that most of teh nudity here involves people who CLEARLY are not under 18 - and if we don't take a stand against this crap now, when will we.
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Thu, December 8, 2005 - 3:00 PM
            >> That's kinda simple. Challenge the fricking law. <<

            Ah ... so simple! ... Tribe can't put up *banner ads* without howling, and now people think it has the megacash needed to take on DOJ lawyers and to mount a challenge in federal courts.
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 2:07 AM
      I'm sure Tribe Legal and their VC legal (whomever they may be) hashed this out. Those would be interesting notes to see! Anyone from Tribe Legal wanna comment? At least every company in their industry is facing the same threat.

      Socially speaking, on the surface, 18 U.S.C. § 2257 seems to be another sex panic law. Community standards and obscenity aside, its power lies in treating primary and secondary producers as the same class, holding secondary producers to the primary producer standard. If it applies to you, this requirement creates onerous bureaucratic record keeping for companies and individuals. Anyway... those fighting it seem to think it'll come down Fourth Amendment unreasonable search (and seizure) stuff.

      See: www.eff.org/deeplinks/ar...es/003741.php
  • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

    Thu, December 8, 2005 - 2:58 AM
    What bothers me about the Tribe admin. messaging is that seems to indicate that 2257 is the primary statutory reason for these changes. But then why muck things up with this stuff about replacing Mature profiles/tribes with Private, and "Community Flagging", and kicking off people whose age shows < 18 ... all of which launched flames and counter proposals from Tribe members about pay-for-hosting, Friends sections, designating "Adult", "Explicit", or other restricted areas. It's all irrelevant to 2257.

    2257 is specifically *not* about preventing minors (or anyone) from *viewing* sexually explicit material, but preventing minors from *performing* in it. Thus, it is completely *unaffected* by restrictions on viewing. It is onerous because it targets all "sexually explicit" viewing material, regardless of what restrictions or labels we put on who can see it. But changing things from Mature to Private, and adding "Community Flagging" is just distraction and gasoline on the flames of Tribsters and does *nothing* to better the company's position with 2257.

    Unless they're worried about other obscenity statutes ... but that's *not* what they're saying ... they're specifically pointing to 2257.
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 1:28 PM
      These are just guesses...

      Q: Why replace "Mature" with "Private?"
      A1: 18 U.S.C. § 2257 may distinguish between public vs. private publishing?
      A2: Either way, if the public can't stumble on disputed content because it's private, it's unlikely it'll cause Tribe Corp. or the Tribe Poster legal problems in terms of actual enforcement.

      Q: Why "Community Flagging?"
      A: The internet is country wide, potentially reaching all communities. Community flagging might get around a lowest community tolerance standard (States Rights anyone?) and offers Tribe plausible deniability from right-wing government harassment, offended Tribe users, & pissed off censored Tribe users. This way Tribe limits the legal advice they give to their users (or what might be construed as such) as to what's decent or indecent, they let the "community" do it. Yes, this has all sorts of difficulties in practice.

      Q: Why over 18?
      A1: This could be the product of some legal team's "what if" / worst-case-scenario. It gets Tribe out of having to police its postings to an even higher standard of (ahem) decency required for under-18s. The idea being that "community standards" for what's appropriate for an under/over 18 individual differ. For instance, hypothetically, something posted on Tribe is reported and runs afoul of 18 U.S.C. § 2257, the DOJ tries to prosecute, at least Tribe can say that Person-X (either the offended or the alleged offender) was an adult.
      A2: Tribe's worried that an under-18 might accidentally post something a) obscene and b) by virtue of their age all the more illegal (for example: that overly revealing seafoam green prom dress or kilt).

      I'm sure that Tribe Corp. could shed light on these questions (w/o giving legal advice). As far as I've seen, much of the Tribe community's angst could have been better informed by Tribe Corp. More outreach and education, sort of a "18 U.S.C. § 2257 and You: why we/Tribe feel compelled to make these changes" statement.

      Additionally, Wade writes (above), "The other part is that we really do want to create an environment of respect for everybody on our site." The word "respect" is used a lot, is standing in for a larger history/debate, and could be unpacked. Was there a respect problem on Tribe unrelated to 18 U.S.C. § 2257 legal requirements? What does this mean, how did "respect" develop as the solution?

      How does "respect" relate to lowest common denominator thresholds for inoffensive/offensive content?
      • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

        Thu, December 8, 2005 - 1:44 PM
        I posted this on the other thread, but I thought it was relevant here as well. I just read the document, and it seems to me pretty clear that it does not apply to Tribe itself, just the people who are posting content. On page 13 it says, under 75.1 Definitions, it makes the following exception:

        (4) Producer does not include persons whose activities relating to the visual depiction of actual sexually explicit conduct are limited to the following:

        (v) A provider of an electronic communication service or remote computing service who does not, and reasonably cannot, manage the sexually explicit content of the computer site or service.

        Am I crazy, or does this not describe Tribe? It seems to be their existing policy regarding mature content is fine as is.
      • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

        Thu, December 8, 2005 - 2:41 PM
        Thanks John. Understand that I'm trying to stay relentlessly on topic here and my questions are purely about how Tribe's measures address U.S.C. 2257. And 2257 (as I understand it) is entirely about the content and its producers and says *nothing* about its viewers.

        >> 18 U.S.C. § 2257 may distinguish between public vs. private publishing? <<
        I'm pretty sure it does not. The record-keeping requirements are not contingent on the size or nature of the potential audience.

        >> Either way, if the public can't stumble on disputed content because it's private, it's unlikely it'll cause Tribe Corp. or the Tribe Poster legal problems in terms of actual enforcement. <<
        Good point ... but that should not factor into Tribe Co.'s assessment. If the content is problematic, they should not rely on the discretion of the viewers to keep them out of trouble. In fact, I would argue that the small, private collections are more likely to contain *really* problematic content than widely viewed public areas.

        >> Why "Community Flagging?" <<
        Again, whether something violates 2257 or not is not affected by who sees it or whether they are offended.

        >> Why over 18? <<
        Good point about minors posting their own photos. My point was about the sudden enforcement, yesterday, of the under-18 rule, which leads people to think that this is about *viewer* access.

        >> The word "respect" is used a lot, is standing in for a larger history/debate, and could be unpacked. <<
        Agree absolutely! That's why uncorking this much larger debate now, while invoking 2257 as the reason for the urgency, is *terrible* timing! Issues get conflated ... and people (like me) who might try to support Tribe Co. with its legal dilemmas, can't get heard through all the flame-noise, and start to wonder if Tribe is *worth* defending.
  • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

    Thu, December 8, 2005 - 3:33 PM
    Someting I posted elsewhere that I'll put here becaus eI believe it will fall on intellegent ears...

    If Larry Flint (if you have to ask, then you don't get it) isn't fighting this law, then that says a lot.

    ----------------------------------
    FlyntDigital's 2257 Announcement
    FlyntDigital is pleased to announce that ALL of its promotional tools and tours are fully compliant with the 2257 regs and you can feel confident in using HUSTLER pre-approved content. All free Hustler content requires no documentation on your part as it is completely free of sexually-explicit depictions.

    One very important point we want to make to all our loyal affiliates: FlyntDigital will not be held responsible for use of any unauthorized content. Only pre-approved content appearing on FlyntDigital.com is authorized for use in promoting our websites. This is for your protection as well as ours. Hustler intends on doing everthing in it's power to assist the long term survival of it's dedicated affiliate base.

    For any questions or comments about this new promotion or any other FlyntDigital services, contact either Laurel Hertz or Mike Cardone aka ESNEM at Laurel@Hustler.com or Esnem@Hustler.com

    Sincerely,

    The FlyntDigital Team
    -----------------------------------------


    Now, I'm willing to bet that Larry Flint legal team has MUCH deeper pockets than Tribe.net.

    What this also says is that in all truth, we CAN use hustlers FREE pictures as abasis for what is ok and not ok because "All free Hustler content requires no documentation on your part as it is completely free of sexually-explicit depictions."

    Something to consider. www.hustler.com has quite a few things that would get you pinged under the old TOU, howver according to his lawyers, for a non regional website, all his pictures in the free section are not needing to be covered by 2257.

    Interesting indeed....

    --S
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 3:52 PM
      A dedicated adult entertainment publisher has the systems in place to provide proof of age (copies of state issued photo IDs) and more easily fulfill the requirement 20/wk. hours of open access to these records.

      Using some other producer's (you mention Hustler.com) content is not likely the issue for the majority of Tribe users newly effected by 18 U.S.C. § 2257. Instead, they want to "produce" their own content and post it to Tribe w/o 18 U.S.C. § 2257 kicking in. The question may be, is this requirement an undue burden on the vast majority of non-commercial "producers?"

      "EFF believes that this warrantless inspection requirement illegally forces bloggers and others to sacrifice a constitutional right -- freedom from unreasonable searches and seizures -- in order to exercise the fundamental rights of freedom of speech and the press. It's a tradeoff that the government should not force people to make." [www.eff.org/deeplinks/ar...s/003741.php]

      Anyone remember the sex-panic madness from the nineties when law abiding parents were criminalized for taking unerotic photos of their babies in the bath? I think their photo processor turned them in.
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Thu, December 8, 2005 - 4:55 PM
      From a business point of view, 2257 is *great* for Larry Flynt. It puts amateurs at a disadvantage.
      • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

        Fri, December 9, 2005 - 12:06 AM
        I finally got a chance to review all this discussion and the associated links, and I'm still having a hard time understanding how it is that Tribe could be considered a Producer or Secondary Producer since they are engaged in neither producing nor reproducing/distributing adult content. Still seems to me that they fall under the exemption I mentioned above.

        The discussion on this thread has been very interesting. It is quite disturbing that Tribe is using legislation designed to protect children from being featured in pornographic content as an excuse to censor us. And find it offensive that Tribe claims that this is about respect. I'm failing to see how a civilized discussion about BDSM or how to perform the perfect blowjob, or photos of said activities, is disrespectful or innapropriate. It certainly doesn't have anything to do with the 2257. Nobody forces you to look at content on any given tribe here. The individual makes that choice.
        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Fri, December 9, 2005 - 12:26 AM
          The *photograph* of the blowjob (not the description), does raise 2257 issues, because it is an actual sex act involving actual people ... and thus requires the producer to document that nobody in the photograph is a minor. But agree with you on all the rest.

          As for whether Tribe qualifies as a secondary producer, I think hosting the web site on which the images are displayed constitutes "distribution" or "publishing." I would love to be proved wrong however.
        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Fri, December 9, 2005 - 12:29 AM
          my.execpc.com/~xxxlaw/225...s5.24.05.htm

          This particular site compares (side by side) 18 U.S.C. 2257 prior to June 2004, June 2004 changes, Regulations Effective June 2005. It shows additions and subtractions across the three iterations.

          There's a lot in there about Primary and Secondary Producers and what the law requires.
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Fri, December 9, 2005 - 12:56 AM
            Fred, you are of course correct -- an image of a blowjob would fall under 2257. What can I say -- it's late and I'm tired.

            John, thanks for posting that link. I guess the question is whether or not Tribe "manages the sexually explicit content of a computer site or service." It seems to me that they don't manage content and would be no more responsible for the mature content on their site than Google or Yahoo. It would be nice to get a clear legal opinion on this.
          • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

            Fri, December 9, 2005 - 6:10 AM
            One important thing to note is that the law has not changed at all, just the Bush Administration's interpretation of it.

            Laws are not made by publishing something in the federal register.

            It will be up to courts to decide if the new inturpretation goes beyond the original wording and intent of the law (and many groups think that it does).
            • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

              Sat, December 24, 2005 - 10:22 AM
              Actually, the law DID change. It was rewritten by Bush administration appointees in 2004 with the important secondary producer changes and nearly impossible to correctly follow documentation standards. It became effective earlier this year.
              • Unsu...
                 

                Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

                Sat, December 24, 2005 - 11:19 AM
                "Actually, the law DID change. It was rewritten by Bush administration appointees in 2004 with the important secondary producer changes and nearly impossible to correctly follow documentation standards. It became effective earlier this year."

                Ok.. However...

                What I have read was not so much the law it self, but the way the DOJ is interpeting the law, i.e. their regulations. Regulations for admnistrative agencies, in this instance, the DOJ, is their departmental interpetation.

                " (3) the term ''produces'' means to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but does not include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted; and"

                -------------------------------------------------------------
                "......but does NOT include mere distribution or any other activity which does not involve hiring, contracting for managing, or otherwise arranging for the participation of the performers depicted............"
                --------------------------------------------------------------

                the "but" part surely sounds like say Tribe (a server), who are not participating in the hiring and such of the "performers".....yet is in fact "distributing"... yet is the exception to the defination, and thereby 2257 not applying to servers like Tribe.

                That is my interpetation......

                Rapture

        • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

          Fri, December 9, 2005 - 6:13 AM
          Not all of the changes at Tribe are directly due to 2257.

          Tribe employees have stated that there are certain types of things they do not want here, no matter what the law allows.

          All sexually explicit material (whether or not it is subject to 2257) will be against the new TOU.
    • Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

      Fri, December 9, 2005 - 4:46 PM
      If you want to know who's on the forefront of this, it's voyeurweb.com/ redclouds.com , which are sites that feature user-created amateur porn. The owner of these sites is in the middle of a legal battle which is probably going to determine where this goes in the future.

      I suspect that until this is resolved, frankly, Tribe's too small for prosecutors to bother with. So if I owned Tribe, I would not feel the need to take action yet.

      Redclouds/Voyeurweb is, of course, a multi-million dollar operation that I daresay is far more profitable and has way deeper pockets than Tribe. They got an injunction which does not require them to comply with the requirements until the case is resolved. I'm betting they'll figure out a decent (pun intended!) way around this for everyone.

      D

  • Unsu...
     

    Re: 18 U.S.C. § 2257 FAQ (history, issues, etc).

    Thu, December 8, 2005 - 4:45 PM
    Taht Primary / Secondary distinction is more blurry than it used to be.

    In re Grand Jury Subpoena Duces Tecum to John Doe 1, 368 F.Supp.2d 846, 852 (W.D.Tenn. 2005) in foot note 11 the court stated the following.

    T]he congressional purposes in enacting [§ 2257] are threefold: (a) to prevent the exploitation of children by requiring those responsible for photographing or videotaping sexually explicit acts (those defined in the regulations as "primary producers") to secure proof of the performer's age and to keep a record of the same as evidence of their compliance, (b) to deprive child pornographers of access to commercial markets by requiring secondary producers to inspect (and keep a record of) the primary producers' proof that the persons depicted were adults at the time they were photographed or videotaped, and (c) to establish a system by which a law enforcement officer in possession of materials containing depictions of sexually explicit acts will be able to identify the performers and verify compliance.

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