Secondary producers and 2257 - GoFuckYourself.com

digitaldivas · 08-05-2009, 08:27 PM

Is the updated portion of the bill now excluding secondary producers, ie. affiliates from having to keep records on galleries, etc? Heard this on another forum and just making sure. I also referenced the cornell law school site and it stated

(B) does not include activities that are limited to?
(i) photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication;
(ii) distribution;<<<<<<<<
(iii) any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;
(iv) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or
(v) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute such selection or alteration of the content of the communication;

digitaldivas · 08-05-2009, 10:44 PM

got it straight. thats what i thought.

pornlaw · 08-06-2009, 02:52 AM

Did you forget this section of 28 CFR 75.1 ?

Quote:

(c)(2) Secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.

and this part of 28 CFR 75.2?

Quote:

(b) A producer who is a secondary producer as defined in §75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in §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. The copies of the records may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted.

Secondary producers are not excluded from record keeping requirements. Matter of fact this version of 18 USC 2257/28 CFR 75 makes it necessary for secondary producers, ie., affiliates, to maintain records.

The DOJ put out a small business compliance guide with the new regs. Here is a relevant portion of that guide.

Quote:

Q. Who is required to maintain records?

A. Both primary and secondary producers of covered materials. A primary producer "is any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct." 28 C.F.R. § 75.1(c)(1). A secondary producer "is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing." 28 C.F.R. § 75.1(c)(2).

Q. Who is not required to maintain records?

A. Individuals or entities are not covered producers if their role with respect to covered materials is limited to photo or film processing; distribution; services that do not involve the hiring, managing, or arranging of the participation of depicted performers; providing telecommunications or Internet services; transmission, storage, retrieval, hosting, formatting, or translation of a communication, without selection or alteration of the content of the communication; or dissemination of a depiction without selection or alteration of its content. See 28 C.F.R. § 75.1(c)(4).

Affiliates would not be considered a mere distributor since there is a process of selection in determining which content is to be used.

And here is the interesting part of this for programs that do not give their affiliates the docs and IDs... "including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing."

I can see the DOJ/FBI going after a program under the "conspiracy" theory they set forth in the language of the law if that program doesnt give the affiliates the necessary docs/IDs. Failure to give the docs/IDs could be a criminal conspiracy, and then it gives the DOJ/FBI the power of RICO to come in and start seizing assets.

If anyone remembers, the DOJ/FBI used RICO to seize buildings owned by a company that had several adult stores in which it was determined by a jury that a only a couple of movies were "obscene." RICO is a nasty powerful statute for the government to use and in this day and age of the deficit I would be worried about them using it again in the context of 18 USC 2257.

Here's a footnote from Sequoia Books decided in 1990...

Quote:

Though it is not part of the record in this case, the Attorney General's Commission on Pornography recommended that state legislatures enact forfeiture provisions tied to obscenity violations and cited with approval the use of one such provision to obtain forfeiture in one case of property worth up to $100,000, including two computer systems and two projection screen televisions. Attorney General's Commission on Pornography Final Report 497-498 (July 1986)

In 1984, Congress expanded the definition of "racketeering activity" within the Racketeer Influenced and Corrupt Organizations Act (RICO) to include "dealing in obscene matter." Pub.L. No. 98-473, Sec. 1020(1), 98 Stat. 2143, codified at 18 U.S.C. Sec. 1961(1)(A). As highlighted in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, states such as Indiana have followed this pattern closely, adding obscenity violations to the list of predicate offenses listed in the state's RICO statute. Justice Stevens, in his dissent and partial concurrence to Fort Wayne Books, lists the states that have taken this path. 109 S.Ct. at 938 n. 28.

As noted below, however, in the context of discussion of United States v. Pryba, 900 F.2d 763 (4th Cir.1990), it is important to distinguish the provisions at issue in this appeal from the federal RICO forfeiture provisions and imitative state provisions, which call for forfeiture of "any interest" gained or used in connection with a racketeering enterprise.

And here is the definition of distribution according to 75.1

Quote:

(ii) Distribution;

(iii) Any activity, other than those activities identified in paragraphs (c)(1) and (2) of this section, that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers;

(iv) The provision of a telecommunications service, or of an Internet access service of Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231));

(v) The transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; or

(vi) Unless the activity or activities are described in section 2257(h)(2)(A), the dissemination of a depiction without having created it or altered its content.

The definition specifically excludes (C)(2) - which are Secondary Producers.

Gonzo Modeling · 08-06-2009, 02:55 AM

useful info!

digitaldivas · 08-06-2009, 01:04 PM

So only in certain instances, are secondary producers required to keep 2257 records? The statute seems to contradict itself. Also never heard if the free speech coalition won that case it had before the courts? I guess that it is ongoing, as I went to the site and under "Legal", they state

"When all other avenues to protect the industry and FSC members have been exhausted, litigation may be a solution. FSC focuses on cases of national interest that have a direct impact on the industry?s future and well being. FSC has provided support in the form of Amicus Briefs, legal referrals and occasionally, as is the case of Ashcroft v. Free Speech Coalition or our ongoing efforts with 2257 litigation."

I also stumbled upon the current regs and saw
"(b) If the primary producer and the secondary producer are
different entities, the primary producer may certify to the secondary producer that the visual depictions in the matter satisfy the standards under paragraphs (a)(1) through (a)(3) of this section. The secondary producer may then cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record- keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part."

and another statement from a website stated
"(d)Since the media are now all meeting compliance, we do not need to provide secondary producers (meaning those who are you using our media on their site) 2257 records because they're all exempt."

...hmm

tony286 · 08-06-2009, 01:08 PM

Since the new 2257 allows second party custodians. The sponsor is the second party custodian of records for the affiliate. If sponsors were going to be giving out that info, the days of just signing up as an affiliate would be over.

digitaldivas · 08-06-2009, 01:12 PM

Quote:

Originally Posted by tony404

Since the new 2257 allows second party custodians. The sponsor is the second party custodian of records for the affiliate. If sponsors were going to be giving out that info, the days of just signing up as an affiliate would be over.

true, and upon more further digging, i also found that
On October 23, 2007, the 6th Circuit U.S. Court of Appeals ruled that the record keeping requirements were facially invalid because they imposed an overbroad burden on legitimate, constitutionally protected speech.[1] However the US DoJ, then under the control of US Attorney General Michael B. Mukasey, asked for, and was granted, an en banc review of the initial decision of the 6th Circuit Court in order to see if the initial decision should be overturned.[2] The 6th Circuit en banc review is currently unscheduled.

So basically, the DOJ has contested the ruling, but is in no hurry for this "en banc" review.

digitaldivas · 08-06-2009, 01:18 PM

FBI Clarifies 2257 Inspection Issues, Info
Lead inspector said there will be no inspections of secondary producers until the recently proposed revised regulations are finalized.

LOS ANGELES — The FBI has not purposefully inspected any secondary producers to date, and will not start inspections of secondary producers until proposed revisions to the 2257 record-keeping regulations have been finalized, according to the agent in charge of the FBI’s 2257 inspection effort.

“We do not inspect secondary producers,” Special Agent Chuck Joyner told XBIZ. “On a few inspections, we determined the company was a primary producer for the majority of the products we reviewed. However, some of the products reviewed were produced by a separate company and the company inspected was the secondary producer or distributor. In those instances, we did not review any records for products determined to be produced by another company.”

Following the revelation that the FBI had inspected five Florida-based producers last month, some speculated that one or more of the producers inspected had been a secondary producer. This speculation was based in part on a paraphrasing of an unidentified producer who allegedly told the inspection team that he had not kept any records prior to 2005.

Joyner told XBIZ, however, that the FBI would not undertake any inspections of secondary producers until the revised regulations are in effect.

“Until any new regulations become law, they do not exist for our purposes,” Joyner said. “So, no, there will not be any inspections of secondary producers unless the law changes. Any proposed revisions are irrelevant until they become law.”

Asked what the most serious form of violation the FBI has documented to date was, Joyner said that one producer inspected “had absolutely no records for the products we reviewed.”

Joyner said that it was difficult to say which producer had exhibited the largest total number of violations to date, because that number “depends on how the Justice Department or the U.S. Attorney’s Office wants to categorize and charge violations.”

“Conceivably, every missing identification record could be considered a violation,” Joyner said. “Therefore, for example, if 200 performers were identified as engaging in sexually explicit conduct in 10 videos reviewed, it could be as many as 200 violations.”

Ultimately, Joyner said, it’s not up to the FBI to determine what and how many charges might stem from their inspections.

“The FBI conducts an inspection, very similar to an audit, and provides the results to the DOJ and USAO,” Joyner said. “Prosecutive decisions are made by those two entities.”

Joyner said that to date, 29 inspections have been conducted and 25 of the 29 producers inspected had violations of some kind.

“Of those 25, two were re-inspected and had unresolved violations,” Joyner said. “Five of the most recent inspections still require follow-up, but it is expected at least one of those will have unresolved violations.”

Joyner said that the remaining four producers inspected so far “were in complete compliance at the time of inspection.”

“Interestingly, the size of the companies in complete compliance ranged from one of the largest to one of the smallest in the industry,” Joyner said.

Joyner declined to provide specifics concerning the inspection team’s budget or the amount of money allocated annually for 2257 inspections, stating only that “at the present, budget constraints are not a factor in the frequency of inspections.

of course, this article is circa 2007

pornlaw · 08-06-2009, 03:06 PM

Quote:

So basically, the DOJ has contested the ruling, but is in no hurry for this "en banc" review.

Its already been decided and the following is a link to the analysis. 18 USC 2257 remains constitutional.

http://www.firstamendmentcenter.org/....aspx?id=21303

Quote:

The sponsor is the second party custodian of records for the affiliate.

Not true, UNLESS, the sponsor agrees to be the third party custodian for the affiliate in the affiliate signup agreement. They would also need contracts with all existing affiliates to be able to act as the custodian for existing affiliates. However, the affiliate will remain criminally liable if they are inspected and the sponsor hasnt kept up with their records or they made a mistake in keeping the records.

Quote:

(h) A primary or secondary producer may contract with a non-employee custodian to retain copies of the records that are required under this part. Such custodian must comply with all obligations related to records that are required by this Part, and such a contract does not relieve the producer of his liability under this part.

My understanding is that the mere transfer of content without providing docs/IDs is also a violation of 18 USC 2257. Sponsors and affiliates have some serious issues with the new regs under 28 CFR 75.

digitaldivas · 08-06-2009, 03:14 PM

Quote:

Originally Posted by pornlaw

Its already been decided and the following is a link to the analysis. 18 USC 2257 remains constitutional.

http://www.firstamendmentcenter.org/....aspx?id=21303

Not true, UNLESS, the sponsor agrees to be the third party custodian for the affiliate in the affiliate signup agreement. They would also need contracts with all existing affiliates to be able to act as the custodian for existing affiliates. However, the affiliate will remain criminally liable if they are inspected and the sponsor hasnt kept up with their records or they made a mistake in keeping the records.

My understanding is that the mere transfer of content without providing docs/IDs is also a violation of 18 USC 2257. Sponsors and affiliates have some serious issues with the new regs under 28 CFR 75.

Thank you sir, that was what I was looking for!

08-05-2009, 08:27 PM	#1
digitaldivas ..I Heart Cannibal Corpse Industry Role: Join Date: Sep 2007 Location: California Posts: 4,328	Secondary producers and 2257 Is the updated portion of the bill now excluding secondary producers, ie. affiliates from having to keep records on galleries, etc? Heard this on another forum and just making sure. I also referenced the cornell law school site and it stated (B) does not include activities that are limited to? (i) photo or film processing, including digitization of previously existing visual depictions, as part of a commercial enterprise, with no other commercial interest in the sexually explicit material, printing, and video duplication; (ii) distribution;<<<<<<<< (iii) any activity, other than those activities identified in subparagraph (A), that does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performers; (iv) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or (v) the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230 (c)) shall not constitute such selection or alteration of the content of the communication; __________________ ...

08-05-2009, 10:44 PM	#2
digitaldivas ..I Heart Cannibal Corpse Industry Role: Join Date: Sep 2007 Location: California Posts: 4,328	got it straight. thats what i thought. __________________ ...

08-06-2009, 01:04 PM	#5
digitaldivas ..I Heart Cannibal Corpse Industry Role: Join Date: Sep 2007 Location: California Posts: 4,328	So only in certain instances, are secondary producers required to keep 2257 records? The statute seems to contradict itself. Also never heard if the free speech coalition won that case it had before the courts? I guess that it is ongoing, as I went to the site and under "Legal", they state "When all other avenues to protect the industry and FSC members have been exhausted, litigation may be a solution. FSC focuses on cases of national interest that have a direct impact on the industry?s future and well being. FSC has provided support in the form of Amicus Briefs, legal referrals and occasionally, as is the case of Ashcroft v. Free Speech Coalition or our ongoing efforts with 2257 litigation." I also stumbled upon the current regs and saw "(b) If the primary producer and the secondary producer are different entities, the primary producer may certify to the secondary producer that the visual depictions in the matter satisfy the standards under paragraphs (a)(1) through (a)(3) of this section. The secondary producer may then cause to be affixed to every copy of the matter a statement attesting that the matter is not covered by the record- keeping requirements of 18 U.S.C. 2257(a)-(c) and of this part." and another statement from a website stated "(d)Since the media are now all meeting compliance, we do not need to provide secondary producers (meaning those who are you using our media on their site) 2257 records because they're all exempt." ...hmm __________________ ...

08-06-2009, 01:18 PM	#8
digitaldivas ..I Heart Cannibal Corpse Industry Role: Join Date: Sep 2007 Location: California Posts: 4,328	FBI Clarifies 2257 Inspection Issues, Info Lead inspector said there will be no inspections of secondary producers until the recently proposed revised regulations are finalized. LOS ANGELES — The FBI has not purposefully inspected any secondary producers to date, and will not start inspections of secondary producers until proposed revisions to the 2257 record-keeping regulations have been finalized, according to the agent in charge of the FBI’s 2257 inspection effort. “We do not inspect secondary producers,” Special Agent Chuck Joyner told XBIZ. “On a few inspections, we determined the company was a primary producer for the majority of the products we reviewed. However, some of the products reviewed were produced by a separate company and the company inspected was the secondary producer or distributor. In those instances, we did not review any records for products determined to be produced by another company.” Following the revelation that the FBI had inspected five Florida-based producers last month, some speculated that one or more of the producers inspected had been a secondary producer. This speculation was based in part on a paraphrasing of an unidentified producer who allegedly told the inspection team that he had not kept any records prior to 2005. Joyner told XBIZ, however, that the FBI would not undertake any inspections of secondary producers until the revised regulations are in effect. “Until any new regulations become law, they do not exist for our purposes,” Joyner said. “So, no, there will not be any inspections of secondary producers unless the law changes. Any proposed revisions are irrelevant until they become law.” Asked what the most serious form of violation the FBI has documented to date was, Joyner said that one producer inspected “had absolutely no records for the products we reviewed.” Joyner said that it was difficult to say which producer had exhibited the largest total number of violations to date, because that number “depends on how the Justice Department or the U.S. Attorney’s Office wants to categorize and charge violations.” “Conceivably, every missing identification record could be considered a violation,” Joyner said. “Therefore, for example, if 200 performers were identified as engaging in sexually explicit conduct in 10 videos reviewed, it could be as many as 200 violations.” Ultimately, Joyner said, it’s not up to the FBI to determine what and how many charges might stem from their inspections. “The FBI conducts an inspection, very similar to an audit, and provides the results to the DOJ and USAO,” Joyner said. “Prosecutive decisions are made by those two entities.” Joyner said that to date, 29 inspections have been conducted and 25 of the 29 producers inspected had violations of some kind. “Of those 25, two were re-inspected and had unresolved violations,” Joyner said. “Five of the most recent inspections still require follow-up, but it is expected at least one of those will have unresolved violations.” Joyner said that the remaining four producers inspected so far “were in complete compliance at the time of inspection.” “Interestingly, the size of the companies in complete compliance ranged from one of the largest to one of the smallest in the industry,” Joyner said. Joyner declined to provide specifics concerning the inspection team’s budget or the amount of money allocated annually for 2257 inspections, stating only that “at the present, budget constraints are not a factor in the frequency of inspections. of course, this article is circa 2007 __________________ ...

08-06-2009, 02:55 AM	#4
Gonzo Modeling So Fucking Banned Join Date: Aug 2009 Location: Arizona Posts: 465	useful info!

08-06-2009, 01:08 PM	#6
tony286 lurker Industry Role: Join Date: Aug 2002 Location: atlanta Posts: 57,021	Since the new 2257 allows second party custodians. The sponsor is the second party custodian of records for the affiliate. If sponsors were going to be giving out that info, the days of just signing up as an affiliate would be over.