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Where Angels Fear to Tread  – The Dangers of Asserting Unfair Competition Claims Involving 2257 Comp

Where Angels Fear to Tread – The Dangers of Asserting Unfair Competition Claims Involving 2257 Comp

July 29, 2011
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“Those who live in glass houses should not throw stones.” Although trite, this saying is particularly applicable to participants in the contemporary adult entertainment industry.  Invoking criminal laws designed to break the backs of adult business entrepreneurs as a basis for gaining legal leverage in intra-industry commercial disputes can be dangerous business.  This concern arose recently in the lawsuit filed by Ventura Content, Ltd. (i.e. Pink Visual) against Motherless.com, a “tube” site.[1]  Most of the allegations in the Complaint involve fairly typical claims of copyright infringement directed toward a site that allegedly allowed users to upload Ventura’s content, without its consent.  However, what makes this case different, and potentially hurtful to the adult industry as a whole, is the inclusion of a claim premised on California’s Business and Professions Code § 17200, providing various remedies for victims of “unfair” business practices that cause monetary damages to a party.  In its Complaint, Ventura alleges that motherless.com: 1) fails to maintain the performer age records mandated by 18 U.S.C.§ 2257 (“Section 2257”); 2) fails to post a compliance statement identifying the location of the age records required by Section 2257; and 3) fails to identify Ventura as the “primary producer” of the content appearing on the motherless.com website.[2]  Ventura further claims that consumers are lured to the motherless.com site because of its (false) claims of 2257 compliance, and because its content is free.[3]  Perhaps most disturbingly, Ventura asks the court to enforce Section 2257 by issuing an injunction shutting down the motherless.com website for failure to comply with Section 2257.[4] 

Those of us who have been involved with the adult industry since the 1980’s can attest that the industry has consistently been fighting the validity and enforcement of Section 2257 for decades.  Countless hours of manpower, brain power, volunteerism, and legal work, have gone into multiple lawsuits and lobbying efforts, all designed to rid the world of the unfair and unconstitutional burdens imposed by Section 2257.  This law costs both content producers and webmasters millions of dollars in compliance efforts and legal advice on a yearly basis.  Drafted by Congress as a knee-jerk reaction to the Traci Lords scandal of the early 90’s, Section 2257, even if fully complied with,[5] does not do a single thing to legitimately combat the involvement of underage participants intentionally misrepresenting their age with a fake ID.[6]  This article is not designed to outline the many constitutional defects with Section 2257 – that has been done time and time again, in numerous, well-written complaints and legal briefs filed by industry representatives.  Nor is this article designed to cast aspersions upon Ventura as a company.  In fact, this author has pointed out in the past that Pink Visual, in particular, is remarkably visionary in its approach to adult content delivery.[7]  This article is intended to call attention to a potentially unwise legal strategy that jeopardizes the decades of effort executed by the adult industry in its constant battle against constitutionally-questionable effects of Section 2257.

The Complaint against motherless.com was filed at a particularly vulnerable time in the adult industry’s history.  The Free Speech Coalition’s lawsuit challenging Section 2257 was recently dismissed, and with there was a heartbreaking end result in the Connections case, where an earlier decision invalidating Section 2257 on constitutional grounds was vacated by the en banc panel of the Sixth Circuit, which chose to uphold the statute.[8]  Unless the FSC happens to catch a break in its appeal to the Third Circuit, few barriers to ultimate enforcement of the statute now exist.  Politically, we could be headed for an ultra-conservative new GOP President, House and Senate - all with the adult industry squarely in its sights.  While it has been years since any 2257 inspections have occurred, the statute could be enforced with a vengeance given the slightest shift in political winds.  The Department of Justice can go back several years in determining whether a producer or distributor was in compliance, and is thus not limited to investigating the current compliance regime in place by a potential target.  Therefore, even if companies are in compliance today, they remain at legal risk if their compliance methods fell short in the past few years.

Despite this precarious environment, Ventura initiated a lawsuit against motherless.com which provides implicit validity to Section 2257, and which can be misused by the opponents of the adult industry.  Moreover, Ventura seeks to enlist the help of the federal court in enforcing Section 2257 against the website defendant and shutting it down for its alleged failure to fully comply with the records keeping and labeling requirements.  Again, such claims pre-suppose the validity of 2257, which (as noted above) the industry has been fighting for decades.  Ventura already claims to have recorded numerous instances of copyright infringement against motherless.com, so the additional benefit of including this delicate and potentially dangerous “unfair competition” claim, under California law, seems – at a minimum – questionable.   The author fully acknowledges that content producers have the right to fight piracy, and lawyers have the right to use all legal tools at their disposal to vindicate their client's interests.  But, from the perspective of a First Amendment lawyer, signing a complaint that seeks to force any party to comply with Section 2257 – under the pain of court-imposed censorship, would present a significant quandary.  That’s a little too close to the DOJ’s job for comfort, in this author’s view.  Moreover, if Ventura wins, any such ruling could create substantial vulnerability for other online service provider websites that rely on the same statutory 2257 exemptions as tube sites for their operations - such as adult dating sites, online escort sites, adult forums, and adult review sites.  Ventura could win its battle against motherless.com, yet help lose the 2257 war for the industry.  There could also be a domino effect on related protections from civil liability afforded to online service providers, such as those found in Section 230,[9] and the safe harbor provisions of the DMCA.[10]  Notably, the 2257 exemptions at issue in this case are directly tied to Section 230’s immunity concept.  See, 28 C.F.R. § 75.1(4)(v).  In this author’s opinion, the risks for other service providers, and even for other content producers, is just too high to justify the limited additional leverage that inclusion of this claim accomplishes.  However, there is admittedly room for disagreement on this issue.  Given the problems that content producers have encountered with getting piracy under control, there is no perfect answer here.

While many content producers maintain a little-publicized, symbiotic relationship with tube sites, whereby the sites are allowed to seed certain levels of content for promotional purposes; there is no indication that such was the case between Ventura and motherless.com.  Accordingly, if Ventura was truly the victim of online piracy by motherless.com, as alleged in the Complaint, its outrage and demand for legal justice is understandable.  But converting the desire to enforce one’s intellectual property rights into a demand that an adult website be shut down by a federal court for failure to comply with Section 2257 is what generates the discomfort.   My recommendation, for what it’s worth; go after the pirates for intellectual property infringement until the cows come home, but leave Section 2257 enforcement to the  Department of Justice; it has already accepted the job of making life difficult for the adult industry.

[1] Case No.: 2:11-cv-05912-SVW-FMO (C.D. CA 2011). 

[2] Complaint at ¶¶ 31-38. (Notably, Section 2257 no longer requires secondary producers to identify the “primary” producer of the material.  Such practice was commonly used by webmasters until the change in the law that occurred in 2008, requiring all producers to maintain their own records.)

[3] Complaint at ¶ 39.

[4] Complaint at ¶ 41 (Unlike some other federal statutes, Section 2257 does not provide for a private right of action, allowing private parties to seek enforcement of this criminal statute.)

[5] Most adult industry attorneys concur that 100% compliance is virtually impossible, and that very few (if any) content producers or webmasters are in complete compliance with all the nuances of Section 2257.

[6] Congress passed the initial version of 2257 in response to the Traci Lords scandal, wherein Ms. Lords, at the tender age of 15, began her adult performer career using a fake ID. 

[7] See, The Marketplace Has Spoken…and at least one company has listened, available at: http://lawofsex.wordpress.com/2011/03/23/the-marketplace-has-spoken%E2%80%A6-and-at-least-one-company-has-listened/

[8] Connection Distributing Co. v. Keisler, 505 F.3d 545 (6th Cir. 2007) reh’g granted, opinion vacated sub nom, Connection Distributing Co. v. Holder, 557 F.3d 321 (6th Cir. 2009).

[9] 47 U.S.C. § 230, et seq.

[10] 17 U.S.C. § 512


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