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FEATURE

Gary Kaufman

Gary Kaufman

November 8, 2007
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" What is the responsibility of a website for the postings of its members? "

In late August, a federal court dismissed a lawsuit against SexSearch.com and other adult companies. The suit claimed that an adult male was tricked into having sex with a female minor who posted that she was over 18 years old on SexSearch. The complaint posed a major legal threat to social networking and dating sites, placing the onus on them for verifying the ages of all members.

But thanks to the efforts of attorney Gary Jay Kaufman, that danger has gone by the wayside. Kaufman, lead counsel for the Los Angeles-based Kaufman Law Group, said it was all just a matter of educating the judge.

"The plaintiff's lawyer claimed that he'd spent 1,100 hours preparing the case before he filed it," Kaufman said. "It was like the guy was on a mission. He was able to persuade the federal court judge in Toledo, Ohio, to issue restraining orders against the defendants. We had to come in and turn that around. We had a motion for a preliminary injunction, and the judge totally flipped it back on the plaintiff, denying that motion. We followed that up with a motion to dismiss, and the judge threw out the whole case."

Kaufman admits he was amazed by the extent of preparation the plaintiff's lawyer had put into the complaint, which contained more than 400 paragraphs of allegations. But Kaufman never lost sight of the real issues at the heart of the case, and he made sure the judge saw it the same way.

"When you stepped back from it," Kaufman said, "you saw the plaintiff admitted under oath that he had sex with a minor, and that he was blaming other people for it because he met this minor through their Internet service. The fact remains that he knocked on her door and saw a kid there. No matter who he blames, he's the one who unbuckled his belt, unzipped his pants, and proceeded to have sex with this kid. The police arrested him for it, but instead of accepting responsibility for what he did, he got a lawyer who spent lots of time coming up with some crafty, novel arguments that said it's someone else's fault. His lawyer somehow persuaded a very good federal court judge to issue broad restraining orders that were really Draconian. We essentially had to educate the judge as to the real issues."

The real issues in this case, according to Kaufman, boil down to this: What is the responsibility of a website for the postings of its members? How culpable is a website that claims it is an adults-only membership?

"These issues are very dynamic," Kaufman said. "There is lots of adult stuff online, and no one in their right mind wants kids to view pornographic images. Adults have the right to see whatever they want, and you don't want the government preventing adults from seeing what they want. So the issue is about adult rights versus protecting minors. The Supreme Court ruled on it in ACLU vs. Gonzalez, going to great lengths to say there must be a balance between protecting minors, and imposing a duty on websites to verify ages. The court ruled that there's really no possible way to do that, because people under 18 have access to credit cards. They agreed that it's impossible to verify the age of every member."

Kaufman believes that responsibility should fall on the parents to monitor the behavior of their children, making sure they don't have access to adult material. In the SexSearch case, the female minor advertised herself for sex. The plaintiff faced up to 15 years in prison for taking her up on the offer, but the criminal case against him has been dismissed — "probably because his lawyer made life so miserable for the victim's family that they just didn't want to go through with the prosecution," according to Kaufman.

The SexSearch suit is merely one of many adult cases Kaufman's firm has accepted in recent years. He estimates that adult clients make up about half of his firm's workload now, and he thinks he knows why.

"We've been getting results," Kaufman said. "The cases I've represented in the adult industry are mainly business issues. They just happen to be adult businesses. But the issues are not unlike mainstream legal issues. I've had several large arbitration awards before conservative judges, and I convince the judges that even though this is the adult industry, it's really nothing but a business dispute."

One of his firm's techniques is to make adult clients seem as mainstream as possible to judges, who can have built-in prejudices as to what they expect from the owner of an adult business.

"What needs to be done is to make sure the client looks conservative," Kaufman reveals. "I want him wearing a business suit with a white shirt and a tie. I had an arbitration case recently, where my client came in with a business suit and tie, and the other side came in with an open shirt with a gold chain. From that moment on, we knew we had this judge. So we're just taking advantage of those prejudices. Judges are human beings, and even though they're supposed to follow the law, they are persuaded by very subjective factors. You need to know in advance what the judge is like — by doing research — so you can anticipate their prejudices and deal with them right up front."

Aside from the dress code gambit, Kaufman believes he holds another edge over opposing lawyers. Most attorneys take cases hoping for an out-of-court settlement. Kaufman, on the other hand, itches for his day in court.

"When you face my firm, you have to fight to the end," he said. "Many lawyers take cases without looking down the road to see what it's going to be like in trial. They don't consider what they'll have to prove or who their witnesses are going to be. But when we take a case, we go to trial.

"When I take a case, I picture myself being before the judge, and I picture who's going to be in the witness box, and what they're going to say. I work backwards from that. I've been doing this for 27 years and most lawyers don't think about where they're going. They think about alleging this and that, filing this and that, but they don't look down the road to trial. In the SexSearch case I'm quite sure the plaintiff's lawyer was looking for a quick settlement. He probably thought that by making all these allegations, and creating the impression that we're going to have to spend a lot of money, that we'd just as soon pay him. My firm doesn't do that. You're going to have to fight us to the finish."

Kaufman draws a lot of his dogged courtroom manner from his upbringing. Born and raised in Los Angeles, his family was not wealthy and so he had to work in the many small businesses his father owned. This meant flipping hamburgers at his father's burger stand and operating the cash register at his father's liquor store.

"I saw how hard it was to work like that," he said. "Someone had to open up the store every day, stand there all day and then close it at the end of the day. I saw that wasn't for me. I worked hard during junior high, high school and college, and I decided I wanted to go into a profession. I always liked the law."

Kaufman graduated from Southwestern Law School in December 1979 and several months later, after passing the bar exam, he started his own practice.

"I opened my law practice straight from school," he said. "I figured — naively — there was nothing to lose. The worst scenario would be that I'd have to get a job. Looking back now, it's not something I would advise other lawyers to do. It's risky, but it worked."

Today, married for nearly 20 years with two daughters in high school, Kaufman has no regrets about his choice of profession. The courtroom gives way to vent his competitive nature, a nature that shows itself on the tennis court, too. In fact, more than one tennis opponent has said that based on his game, they wouldn't want to face him in a courtroom.

This reputation for getting good results has percolated into the adult world. Now that so many of Kaufman's clients are owners of adult companies, he's had a chance to view the legal landscape regarding adult, and he doesn't like what he sees.

"I think adult is being unfairly targeted," he said. "Right now the government is doing renewed prosecution of obscenity cases. There was a recent conviction in Arizona for spamming under the CAN-SPAM Act. They also were convicted of obscenity and money laundering. My office will probably represent these guys on appeal. The government was very zealous in that case, flying their lawyers in from Washington to Phoenix.

"The government is filing a lot of actions against alleged spammers. A couple of years ago there was a case, Earthlink vs. Alabama Spammers, in which my office was lead counsel. Earthlink was very aggressive in pursuing spammers. We find that many of these cases are filed without proper research."

Aside from spamming, Kaufman sees 2257 as the key legal issue facing adult today. The Kaufman Law Group works closely with attorney Greg Piccionelli, probably one of the leading legal experts in the U.S. on regulation issues. Copyright infringement cases also have accounted for a considerable portion of the Kaufman Group's workload lately.

"Like in every other business, there's outright greed in adult, in the form of pirating protected material," Kaufman said. "Businesses are fighting other businesses over intellectual property rights, copyright infringement and distribution deals.

"If someone is infringing on your copyright, you have to be prepared to shut them down. We tell our clients that they have to follow through. To give a very recent example, a website owner was being ripped off so he had an attorney send a cease and desist letter. The infringer sent back a 'get lost' letter. And they just got lost. But now it's getting worse so they just came to me. I said, 'I'm not willing to just write a letter. You already know the answer. They're just going to tell you to get lost. The way to handle it is to let me prepare a lawsuit. Let me prepare a temporary restraining order and a motion for preliminary injunction. When they're served and about to be shut down, now you've woke them up. They'll realize that you mean business and that they're going to have to spend $50,000 to hire a lawyer.'

"That's how you get results. I won't just write cease and desist letters, because that would affect my credibility and reputation. If I say I'm going to do something, you can be damn sure I'm going to do it."

Kaufman's determination has led to a beautiful batting average in court. His firm's reputation has enjoyed the obvious result of its success.

The high quality of his firm's cases has allowed Kaufman to stay fresh. Even though he's put in so many years as an attorney, the law never gets old for him.

"The law is not black or white," he said. "It's gray. And after being a lawyer for 27 years, I'm happier now than ever. Most lawyers get burned out but my life is good right now.

"I love being in court."


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