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When it Rains, it Pours: 1

When it Rains, it Pours: 1

May 31, 2007
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" ICANN's rejection of a .XXX TLD is one of the most important events in adult entertainment recent history "

In the play "Julius Caesar," William Shakespeare recounts a soothsayer's warning to Caesar to "beware the ides of March." Caesar ignored the warning and was, in fact, murdered on March 15. Julius Caesar's death forever changed world history and made the phrase "beware of the ides of March" synonymous with a warning of impending danger.

Fast-forward a couple thousand years to March 2007.

Around this year's "ides of March" there coincidentally occurred no less than five critically important legal events that have, and will continue, to dramatically impact the legal landscape surrounding the adult entertainment industry. Astonishingly, all of the following occurred in a single month:

  • ICANN voted down the creation of a new .XXX top level domain.

  • After seven years of litigation, the Child Online Protection Act (COPA) was permanently enjoined.

  • A federal judge in Utah refused to grant the FSC's request to enjoin enforcement of Utah's Child Protection Registry law (CPR), and the challenge to the law's unconstitutionality is pending.

  • A federal judge in Colorado dismissed a number of the claims brought by the Free Speech Coalition in the industry's critically important challenge to the 2257 regulations.

  • Playboy, the SexSearch website, Jenna Jameson and other industry leaders became the first targets of a new kind of vexatious litigation, posing a dangerous new threat to the adult entertainment business, by attempting to impose unprecedented age verification obligations on adult website owners that go far beyond anything ever enacted by Congress.

And when so many legal events of such great consequence to the industry occur, literally one on the heels of another, dissemination of erroneous information is bound to follow. Not surprisingly, during the past month, our firm, Piccionelli & Sarno, has spent an unusually large amount of time addressing many misconceptions associated with the various rulings and other events.

Consequently, since our firm is counsel of record or otherwise directly involved in four of the five matters listed above, I thought that it would be both helpful and informative to provide XBIZ readers with a brief executive summary of each of the aforementioned legal news events. Hopefully, the following analysis with suggested action items will better enable you to sort fact from rumor at a time when reliable legal information has become more difficult to obtain.

ICANN Rejection of a New .XXX Top Level Domain
What happened: On March 30 the Internet Company for Assigned Names and Numbers (ICANN) conclusively rejected the application to establish a new ".XXX" top level domain (TLD).

What it means: In my opinion, ICANN's rejection of a .XXX TLD is one of the most important events in adult entertainment recent history. Had the decision gone the other way, it is likely that in time the industry would have been sequestered into, and forced to operate exclusively through, .XXX URLs. Either by law in potentially scores of countries, or as the result of private coercion through providers of critical services, such as merchant processing, bandwidth providers, insurance providers, etc. If such a "ghettoization" of the industry were to occur, it is likely that filtering of .XXX sites would be the default setting on most, if not all, web-enabled devices.

More importantly however, is the fact that the domain name registry that would administer .XXX domain registrations would have also been free to impose operational requirements on adult businesses as a condition for use of .XXX URLs. Thus, if ICANN approved the .XXX TLD, it is also likely that the industry would have been subjected to even more censorial regulation than that which could be constitutionally imposed by any governmental entity in the U.S.

Thus, down the road, the industry might have found itself subject to the censorial whims of an all-powerful private entity immune to first amendment challenges, but potentially subject to external influence and corruption by the industry's foes. This danger exists because the 1st Amendment only applies to censorship by the government and not private entities. Consequently, if a .XXX TLD had been approved, the industry might have had to answer to a ".XXX czar," wielding qualitative censorship power far beyond anything that a government entity would be constitutionally permitted to do.

What's next: It is likely that the party applying for approval of the .XXX TLD, ICM Registry, will probably file a lawsuit against ICANN. If it does, I feel such an action would be little more than a temper tantrum by a poor loser who was soundly defeated in a fair fight.

Suggested industry action: It is likely that the industry's enemies will continue to try to ghettoize online adult entertainment one way or another. It is important for those in the industry to remain vigilant and toughly scrutinize any proposal that seeks to isolate the adult entertainment business in any manner on the web.

Also, please continue to support the legal efforts of the FSC; without member contributions we would not have been able to rally the industry in opposition to the ICM Registry's efforts or send FSC representatives to Lisbon, Portugal to make the industry's case before ICANN. Had we not been able to make these efforts, I believe that the outcome might well have been different.

The Child Online Protection Act (COPA) is Declared Unconstitutional
What happened: On March 22 U.S. District Judge Lowell Reed, Jr. struck down COPA, a 1998 law passed by Congress that made it a crime for commercial website operators to allow persons under the age of 18 to view sexual materials of "harmful matter" to minors. The judge ruled that the law is "impermissibly vague and over-broad." He also recognized that because there are much less restrictive means of blocking online content from minors, such as software filters installed on the user's computer, COPA imposed too great a restriction on free speech to be constitutional.

What it means: The decision is a great victory for free speech in general and the adult entertainment industry in particular. It is also a clear recognition of what should now be obvious to everyone: that it is not fair or even practical to try to protect kids by censoring expression on the web. Now that COPA is permanently enjoined, there currently is no federal harmful-matter law applicable to adult content on the web. This does not mean that anything goes. Remember that the applicability of the obscenity laws to content distributed via the web is alive and well. Consequently, publication of depictions of actual or simulated ultimate sex acts or lewd exhibition of the genitals to anyone, including minors, can result in prosecution, conviction, forfeiture of all related assets and a long, long jail term.

What's next: The government is expected to appeal Judge Lowell's ruling, perhaps all the way to the U.S. Supreme Court. The case, which has already been to the Supreme Court and back (twice) on pre-trial matters is probably effectively over.

COPA was the second attempt by Congress to pass a regulation specifically prohibiting the distribution of adult content to minors via the web. The first, a prohibition against transmission of "indecent" material via the Internet included in the Communications Decency Act, was struck down by the U.S. Supreme Court.

They say that doing the same thing each time but expecting a different result is a form of insanity. Consequently, I think we can expect our beloved Congress to act accordingly and enact a third online harmful matter law. This time it will probably be introduced by Arkansas Democratic Sen. Blanche Lincoln. Lincoln is known for proposing a 25 percent tax on adult Internet sites, last Congress term. Hopefully however, after two failed attempts to pass a federal harmful-matter law applicable to Internet content, there will be a more reasoned discussion of how to solve the problem of kids accessing porn on the web.

That would be a welcome change, because the problem has been driven almost entirely by politics and not by practicality or even common sense. Consider for example how we keep kids from getting into other places we don't want them to go, such as the locked premises of their neighbors' homes. The deterrent to breaking and entering by children is the fact that the kids' parents can be held responsible for damages caused by their negligent supervision of their children. So, in part because of the potential liability children pose to parents, every parent teaches their children to respect the property of others.

But when it comes to the Internet in general and the Adult Internet in particular, it seems that parents and politicians suddenly go stupid. Up until now, the only solution to the problem of minor entry to sex sites put forward by our esteemed representatives has been to enact Draconian laws that threaten adult web site owners with lengthy incarceration. This absurdity is analogous to a minor breaking into the home of another and instead of punishing the delinquent child, the homeowner is sent to prison.

Even more absurd, however, is the fact that Internet harmful-matter laws like COPA are overwhelmingly championed by Republican conservatives who pride themselves on their party's promotion of personal responsibility and small government — except, of course, when it comes to porn. In cases involving that evil subject (sex), Republican conservatives openly advocate that parents shirk their responsibility to monitor their kids' computer activities and transfer that duty to the adult industry. Go figure. And to enforce this absurdity, there is no amount of big brother/big government regulation that can ever be too much.

Hopefully, the COPA decision coupled with a change of congressional control will provide an opportunity to take a fresh and more realistic look at the problem of minor access to adult content online. Call me an optimist.

Suggested industry action: If the government actually ever does get serious about really trying to solve the problem of keeping children out of adult websites, I believe the industry should seriously support those efforts. Until then, I suggest that website owners make it clear that unauthorized entry into their sites and access to their computers and content by minors is prohibited,and such unauthorized access may result in legal actions against the minor and his or her parents.

In part two, we'll look at Utah's Child Protection Registry, FSC's Challenge to 2257 and private lawsuits against adult industry companies.

Gregory A. Piccionelli, Esq. is one of the world's most experienced Internet and adult entertainment attorneys. He can be reached at Piccionelli & Sarno at (310) 553-3375 or at greg@piccionellisarno.com.


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