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Isaacs Obscenity Case & Life Without Miller

Wednesday, April 16, 2014

In a not-so-surprising, albeit disappointing, decision affecting the adult entertainment industry, the 9th Circuit Court of Appeals recently upheld the obscenity conviction of fetish producer, Ira Isaacs. Isaacs was originally charged with violating federal obscenity statutes in 2007, after the distribution of several of his fetish films via U.S. mail.  Isaacs’s 2008 trial was placed on hold and eventually resulted in a mistrial, amid judicial controversy.  Judge Alex Kozinski, who presided over the obscenity prosecution, recused himself within days of commencing the trial, after it was discovered that the Judge had been maintaining a personal humor website exhibiting sexually explicit images.  After another attempt to try the case in 2011 was delayed when prosecutors added more charges, the Isaacs case eventually went to a full trial in March of 2012. For a second time, however, a mistrial was declared after jurors deadlocked on the verdict, 10-2 in favor of the government. The case was tried for a third time in April of 2012, which resulted in conviction and is the basis for the recent appeal.

In general, the Obama administration has been decidedly less interested in obscenity prosecutions than was its Republican predecessor. Since 2009, the administration’s prosecutors have tried only two adult obscenity cases, in contrast to the volumes of obscenity prosecutions that took place under President George W. Bush. Notably, Obama’s Department of Justice has not initiated any of its own obscenity prosecutions, but merely followed through with pending cases initially filed by the prior administration.  

Isaacs’ most recent, unsuccessful appeal relied more on procedural due process arguments, as opposed to disputing his guilt of violating obscenity laws.  The numerous due process claims were rooted in allegations of uncertainty directly related to the Miller Test; specifically, the concept of "prurient interest" as set out in the first prong of the test. According to the ruling, the District Court adopted a proposed jury instruction defining an “appeal to ‘prurient interest” as “an appeal to a morbid, degrading, and unhealthy interest in sex.” After a question was posed by a juror, the Court revised the instruction to read “morbid, degrading or unhealthy.” Isaacs argued that the change “undermined the credibility of his lawyer,” as the attorney, in closing argument, referred to the original instruction. The District Court rejected this contention, finding that the attorney had in fact used both formulations of the instruction during argument so it was “unclear how the revision might have implied to the jury that Isaacs misled it as to applicable law.” Further, the District Court noted that while Isaacs argued that it was error for the Court to correct the instruction, there was an obligation on the Court to clarify issues for the jury, so that they did not abuse their discretion in doing so.

The 1973 case Miller v. California established the standard that is still used today for what defines obscenity. The Miller test, as it is known, has three essential prongs:

  1. Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

Miller has been a source of controversy and debate in the adult industry, since its inception.  The difficulty with the average juror understanding and applying the inherently vague terms of the Miller test can produce unpredictable results.  Unfortunately for Isaacs, the odds were against him from the beginning, given the nature of the content at issue.  Scat material has typically been some of the most difficult to defend, and explain to juries who tend to be shocked when exposed to the content.  While some fetish material has survived obscenity prosecution, this case resulted in a conviction, and now an affirmance on appeal. 

Any time an adult industry participant is convicted of obscenity, discussions ensue regarding the continued viability of the Miller test in today’s world, and whether the industry should support a constitutional challenge to the test.  Given the Supreme Court’s repeated validation of the Miller test for obscenity, even in recent years, it is unlikely to be changed any time soon. But even if the Court was inclined to replace the current obscenity test, the question becomes: With what? Outright abandonment of the well-entrenched concept of obscenity laws is an unlikely result of any such case brought to the Supreme Court, despite some of the encouraging language in Justice Scalia’s dissent in Lawrence v. Texas.  If the challenge was based on the claim that the Miller test was insufficiently clear for common understanding, one could envision the Court handing down a crystal clear, bright-line prohibition on the depiction of specific sex acts, fetish behavior, or BDSM activity, under the guise of more clearly defining obscenity for adult content producers.  In situations like this, it is always wise to reflect on what the parties are really asking for – because they might just get it. 

While Miller suffers from its vague concepts and outdated language, it has provided opportunities for creative arguments, and stunning victories.  While the test is difficult on defendants, it is equally difficult for prosecutors, who are used to well-defined criminal offenses that are not dependent on notions of societal tolerance or considerations of literary value.  Obscenity prosecutions have dwindled to a virtual halt in modern times, and the difficulty in applying the Miller test in today’s society may be partially to thank.  The “community standards” element suffers from outdated concepts of unified values and social mores based on geography, which arise from something out of Andy Griffith or Leave it to Beaver.  Today, neighbors have more in common with their Facebook friends spread out across the world than they do with their neighbor – most of whom they never met.  Fortunately, the decision in U.S. v. Kilbride recognized this inherent weakness of using local community standards, and required juries to apply national standards – at least in online obscenity prosecutions.  With tweaks like these, Miller may be more of a benefit than a hindrance to producers of erotic content, as compared to some other bright line test.  Certainly, all obscenity laws are forms of censorship, and antithetical to First Amendment values.  The Miller test does little to logically separate specific types of content from constitutionally protected speech.  However, it may be as good as it gets for the time being, even if it results in the stray, unfortunate conviction. 

So what’s next for Ira Isaacs and obscenity prosecutions?  Isaacs recently petitioned the 9th Circuit Court of Appeals to rehear his case, with his lawyer arguing, among other things, that the case was not given the “special care that the First Amendment requires.” The likelihood of Isaacs’ petition for rehearing being granted, however, is slim. Assuming it is denied, the chances of the Supreme Court accepting the case are not promising, either.   However, should the Court take interest in the case, it would likely be for the sole reason of again affirming the viability of the Miller obscenity test. For Isaacs and his counsel, they have every reason to try, and should not be faulted to doing everything in their power to undo the conviction.  But in the off chance that the Supreme Court takes the case, it’s time to buckle up.  If the decision results in anything other than a re-affirmance of Miller, things could get dicey.  

Perhaps the Isaacs case will be the last federal obscenity prosecution for a while, as the futility of reigning in the human desire for sexual expression begins to set in for the DOJ.  But as long as we have laws on the books that permit the government to put people in cages for making movies involving consenting adults, the guardians of liberty must remain ever-vigilant.

Larry Walters has been on the forefront of defending the adult entertainment industry for over 20 years, and has defended numerous high profile obscenity cases for adult site webmasters. He operates Walters Law Group (www.FirstAmendment.com) which focuses on Internet law, First Amendment issues and intellectual property.
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UPDATED: Porn Industry - Come To New Hampshire!

Wednesday, April 09, 2014

[An Update at the bottom of this page from Marc Randazza....]

No matter what you may have heard, there are only two states in the continental US where you can legally record real people having sex for money onto film, tape or memory card with the intent to sell those images. Those states are California and New Hampshire. New Hampshire remains untouched by condom wars at this point.

New Hampshire? Huh??????

Yes, there are production companies that get away with producing adult content in places like Florida, Nevada, Georgia and Texas. . . But that does not mean that it is legal to produce porn there. It is a matter of if/when you get caught. And when the law comes knocking on your porn set door, you will face legal fees, loss of income and a lot of valuable time while the law figures out if you were engaging in an illegal activity or not.

Filming real people having sex on camera for money is legal in California due to the legal precedent created in 1988 when the California Supreme Court decided the case of “California v. Freeman,” by declaring that producer and director, Harold Freeman was not engaged in “pimping” or “pandering” when he hired consenting adults to appear in “non-obscene” sex acts. This verdict makes the filming and producing of hardcore pornography legal in the State of California. While the State of California has tried to overturn this verdict, it still stands that it is legal to produce sexual content for sale to the public in California.

In 2008, the New Hampshire Supreme Court also declared that in the case of “New Hampshire v. Theriault,” defendant Robert Theriault was not engaged in “pimping” or “pandering” when he hired a consenting couple to appear in “non-obscene” sex acts. The ruling cited that the defendant had not solicited the couple “to have sexual intercourse for the purpose of sexual arousal or gratification as opposed to making a video.” Part of this decision was based on precedent set by California Supreme Court’s ruling in “California v. Freeman.” There are allegedly plans to appeal the New Hampshire decision. However at the time of this post, it is legal to produce hardcore porn in New Hampshire.

In both of the above cases, First Amendment Rights of Free Speech in America also played a role in the ultimate decisions. Creating “art” is defended as a category of Freedom of Speech.

So, after watching the California drama playing out from our Wasteland.com home based in New Hampshire, I thought it might be helpful to put in a pitch for studios moving to the "Live Free Or Die" state rather than Nevada. (and yes, ironically, "live free or die" is our state motto on our license plates, stamped out by incarcerated prisoners here. Oh dear....)

But first, let's take a look at Nevada.  The obvious choice for studios wanting to flee California and that strange little man with his condom agenda that now is making this a decision point at gunpoint.

At the surface, Nevada looks like a great alernative to LA and CA in general.  Kinda-sorta liberal. Lots of cheap real estate (with black mold) and a hop skip and a jump to get performers in from LA for shoots. Nice airport!  Good entertainment on the strip!  But, filming porn in Nevada is illegal, and falls under the prostitution and pandering laws.  And maybe worse, Vegas is a 100% Union Town.  If you thought CalOsha and Wienstien were a pain in the ass, just wait till the Teamsters knock on your door to make sure the guys you have hauling cables and handing out pizza have a union card at 1000% the expense of the kids you had doing it in LA.

Sure,common knowlege is that Vegas is all "corporate now", divested of its rat pack, made-men beginnings, but what is worse? Frank Sinatra or Steve Wynn having their hand down your pants to rip your wallet out of your ass "for protection"?

Anyway, let's move back to the topic at hand of the great "Granite State" of New Hampshire being your new porn home......

Location, Location, Location!
NH is a lovely state, situated equidistant between NYC and Montreal (4.5 hours by car to either).  If you consider moving here, do what we have done - move to the southern edge bordering Massachusetts.  The NH/MA border is known as the "thin line between comedy and tragedy", but if you locate more than 30 miles north of the Mass border, you just might run into some scary people.  Look at Manchester, Nashua, Portsmouth and other small cities clinging to sane life on the Mass border.  Everything north of that is right out of a Steven King novel. Bring your own banjo and albino creepy guys.

Taxes, Taxes, Taxes!
If you do consider moving to New Hampshire, be sure to rent both your home and commercial property.  When Angie and I moved up here 20 years ago, we loved the concept of no sales or personal income tax, but then discovered the annual tax bill on our 5000 sq foot home was over $12k.  ouch.  RENT!

Culture, Culture, Culture!
One of the nice things about being in Southern NH is being so close to Boston, NYC and Montreal.  Great arts and entertianment towns.  The one thing you will find, being a busy pornographer though is that after the first year, it will all get kind of dull and after the first time yoiu go to a Red Socks game and have a drunk Irish guy puke on your shoes for no reason, you'll probably just stay home and watch HBO.

Talant, Talent, Talent!
This is the odd one....  New Hampshire is 35 miles north of Boston, and 4.5 hours from both NYC and Montreal. Boston is sort of a wash for performers.  It's very conservative there and most "nude models" are in Harvard Law School and have more sense than to do video porn which will come back at them eventually); but...NYC has a large pool of talent, as does
Montreal, but bringing talent in from Canada violates the "Mann Act" ( federal crime for transporting models over international borders). NYC performers tend to think outside the porn box, making for odd negotiations.

Climate, Climate, Climate!
New Hampshire has a wonderful climate 5 weeks of the year!
Lovely 74 degrees.
Bugs the size of your puppy, but fine.......
The rest of the year sucks. Beware.
(oh, heating costs this winter were about $1500 a month for our house and studio. Painful!)

So, that is my insider report from the Great White NorthEast!
Maybe it's time to move? But where, if you have elderly parents or community ties in the USA and want to live a normal life? Prague/Hungary/Madagascar/Mozamique are lovely for about two weeks, and then you miss "home"....  Oh. And there is that "out for the frying pan, into the fire" varable.  Careful. careful......

Colin

UPDATE From Attorney Marc Randazza....

Re: Nevada..

It is legal in Nevada.  They tried to change the prostitution statute to fit adult film, and we showed up at the state assembly meeting and not only got them to change back, but the Atty. Gen. noted in the legislative history that they did so because they considered people versus Freeman to be good law in Nevada as well. 

Also remember that half of people v.  Freeman was a reliance on the First Amendment. That still applies in all 50 states, DC, Puerto Rico, the Virgin Islands, and the Commonwealth of the Northern Marianas Islands. 

At this time, if it has an American flag flying over it it is legal to film porn there. 

However, it is a good idea to examine the states prostitution statute to see if you need to rely on the First Amendment or if you just need to rely on the statutory construction of the prostitution statute in that state.

That said, I would fucking kill to move to New Hampshire.  I love it there. 

As the founder and CEO of Wasteland.com, the Internet's oldest and leading alternative sexual community, Colin Rowntree is a true pioneer of the online adult entertainment industry. Colin's stature within the industry is reflected by the many honors and recognitions he has received, including his 2010 XBIZ Award for Excellence in Alternative Erotica and 2011 Leadership Award from the Free Speech Coalition.
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Out with the Old…

Tuesday, April 08, 2014

April 8th marks the end-of-life for Windows XP, but what will happen to the millions of boxes still online — including my own, faithful and trustworthy 10 year old Dell XPS?

This isn’t an insignificant question, with an estimated 30 percent of desktop PCs still using this venerable operating system (OS), with third-world users the largest install base.

Without any further support from its creator, Microsoft, Windows XP, the company’s most successful OS, will soon become an even more attractive target for criminal hackers — and will slowly see dwindling support from third-party hard- and software vendors.

While Microsoft’s end-of-support announcement caused much concern among users, the situation is not as dire as some predict — at least not immediately. XP boxes will run just fine on April 9th — and for many years beyond that date.

They will not suddenly cease operating, and no one is being forced to upgrade.

Writing for the Trustwave Blog, Dan Kaplan notes that all good things must come to an end, including the 13 year old Windows XP, noting that vast publicity surrounding this shift in computing means it shouldn’t come as a big surprise to tech-savvy organizations — and indeed, it hasn’t.

“Of course, a number of companies currently running XP surely will be taken aback when the deadline arrives. But a much greater majority that hasn’t transitioned to a newer platform across their environment likely has done so on purpose,” Kaplan explains. “After all, such a migration is costly and complex, and runs the risk of breaking things due to incompatibility issues. Because of those reasons, and because XP is so widespread, expect to see it in use for many years to come.”

Most analysts agree that XP will live on for a large number of users.

“In truth, nothing will immediately change,” Matt Smith wrote for Digital Trends. “End-of-support does not negatively impact existing XP installations in any way. No features will be disabled, no upgrades will be forced, and even technical support will still be relatively easy to come across.”

Smith says that users shouldn’t plan to stick with Windows XP forever though.

“Eventually, you’ll need to upgrade or replace hardware with newer equipment which doesn’t support XP, or you’ll fall victim to a security flaw Microsoft never patched,” Smith concludes, adding that “You don’t have to jump to Windows 8 immediately. With some planning and perseverance, you can likely squeeze another year or two out of your existing setup.”

But is this practical reality “practical,” however, especially for adult webmasters that visit “questionable neighborhoods” when online as part of their work and play?

“Entities that fail to update are doing so at their own risk, both from a security and risk perspective, as well as a compliance standpoint,” Kaplan adds, citing the specific issue of Payment Card Industry Data Security Standard (PCI DSS), which will preclude users from relying on systems running XP. This is an important consideration for some paysite owners that may find themselves suddenly without a way to handle transactions…

All of this only reinforces the obvious need to upgrade — but what are the options?

The easiest option is to do nothing until sparks start flying out the back of my PC (this happened to my friend’s old ‘486 machine as it expired, making loud “backfires”), and relying on the skills of the Norton folks for my safety — but this isn’t the best option, as there are many other good reasons to upgrade at this point besides “having to.”

Clearly, Microsoft wants XP users to move to Windows 8.1, but this is a move that many will eschew due to the bad press surrounding Windows 8 — despite the fact that the 8.1 release addressed most of the early complaints about the new operating system.

Indeed, many on the upgrade path may opt for a Windows 7 installation, but that is only a temporary workaround at best, since you can soon expect a new Windows flavor that will leave 7 at least three generations behind the times, and such stagnation kind of renders the point of upgrading moot. And some PC pundits are already proclaiming the imminent demise of Windows 8.x — so the future may hold at least one OS upgrade for any new or soon-to-be purchased PC.

There are alternatives for continuing the use of legacy hardware, such as moving over to Linux or another OS, but that still leaves me running a 3.20GHz Pentium 4 with 3GB of ram and 320GB RAID, which cannot be considered a “performance platform” in 2014.

From an offline media server to a driver for a digital microscope (handy for my rock analysis and gardening), to use in video production with the aid of Black Magic tools or to drive a teleprompter, to even automate my model railroad — the variety of offline uses that these old machines will be put to is staggering.

This leaves me looking for a new “work” box and the choice isn’t an easy one, since changing operating systems leaves a learning curve and also means changing software — whether it involves a move from XP to 8.1, or to Mac or *nix platforms.

With the vast difference between XP and its newer brethren, learning one is the same as learning another, so going from XP to 8.1 “because you know Windows” won’t help as recourse for having to learn Linux or OSX.

Software is expensive and compatibility issues are very real, so for many XP users, the process of upgrading is not limited to hardware, but includes software and training — and while I am on the subject of “extras,” although my two digital 24” rotating flat panels (I love the portrait mode for articles and editing vertical photos) are still up to standards, you really need a fancy new touch screen to make the most of the new Windows OS — and this is a pricey option that eats up a lot of desk space (the 27” Dell is around $800).

My desk is 10 feet (3 meters) wide, so space isn’t a major issue; but every “option” raises the bar for acquiring and deploying a new system.

So what’s a boy to do?

The first thing I did was to install the latest version of Norton Internet Security and ran a full Windows Update (and drivers too) to make sure that everything is kosher on my XP box, with Norton promising continued antivirus support.

After much deliberation on this thorny topic, I have decided to go with Windows 8.1.

I started using Windows 3.1 when I moved over from IBM’s OS/2 (which I loved, but the writing was on the wall), and 8.1 marks perhaps the last milestone for me with the OS — I was damn close to going Mac, as I love my iPad 3 and iPhone 5S — but my two Dell workstations and one Dell laptop have been reliable performers, so the company will find another repeat sale to a loyal customer.

Perhaps staying in the Windows fold is psychologically comforting to me, as it lends a small degree of consistency to a rapidly evolving workflow and business environment — I’m not afraid of or resistant to change, I just like it in small doses that I can “control.”

For the technically curious, the box I ordered (my third Dell XPS) has a 4th Gen Intel Core i7-4770 Processor (8M Cache, 3.4 GHz); 32GB of Dual Channel DDR3 memory at 1600MHz; a 3TB 7200 RPM SATA Hard Drive (6.0 Gb/s); plus a 256GB SSD that’ll be great for video captures; and graphics from an AMD Radeon HD R9 270, 2GB GDDR5.

I should have it up and running before the XBIZ Summit in Miami and will keep you all posted on how this little adventure turns out — and if you are also looking to upgrade an XP system, I hope my story helps you to make the best choice…

A working adult site webmaster since 1994 with experience in both mainstream Internet marketing and amateur-niche adult websites, Stephen Yagielowicz has a diverse background in photography, video production and communications. He has been part of XBIZ since its inception and is an active member of the adult entertainment industry today.
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Cross Selling – The Easiest Retail Trick on the Planet

Monday, April 07, 2014

Ah retail. For many of you readers, you know that it’s a topic that’s near and dear to my heart. Always has been. I grew up on top of my father’s furniture store, started selling lemonade in the third grade at my father’s store’s sidewalk sale, sold gumballs from a defective gumball machine that would crank out two of them for every twist so I got a 200 percent return on my investment and resold them at a 200 percent markup. Worked in lots of retail environments: macramé jewelry I made and sold during my teens, blue jeans (where I could guess someone’s size by looking at them – I can’t do that in this business, though!), fine jewelry, cheese, men’s suits, cards and gifts, and lots of others. My two sisters are both retailers: one for an optical company and the other for a prestigious department store on Fifth Avenue. Yes, retail is in my blood.

Retailers know lots of tricks to encourage sales and I’m going to share some of them with you right here. Good ol’ brick-and-mortar stores need to stay on top of their game to keep bringing in the diñero to keep those buyers engaged and BUYING in your store.

Cross-selling is the art of combining several items into a purchase that the buyer might not have thought about putting together themselves. Let’s look at a few examples.

Perhaps you own a lingerie store. Think of why someone would buy lingerie… the ol’ “one thing leads to another” idea that when someone is wearing a daring, see-through teddy, well, most likely it’s going wind up on the floor and some hardcore hanky panky is sure to follow. But what would that take? Why not display some edible chocolate delights or even flavored lubes near the sheer onesies hanging near a counter? Or how about some non-black cock rings near easy-to-use cute clitoral vibes? And maybe some after-sex wipes just to make clean-up that much easier? Things can be on the milder side, especially if your store caters to a more “tasteful” clientele.

And what to do with all those women’s vibrators? There are plenty of “sub-divisions” in that category so let your imagination go wild here.

How about clitoral stimulation gel right next to the plethora of clitoral vibes? Might as well go all the way into Orgasm-land for those who love it on the outside.

Why should lubricants only be in the lubricant department? Certainly they can be in more departments than just one so put some of your best-selling lubes on shelves right next to those larger than life, realistic vibes. Instead of having your customer march to a different area of the store, they can pick up everything in one area. And what about adding batteries to that location, too? Sure, they might have some knocking around at home but most likely they’re in a drawer and they’ll need four instead of the three they’ll find in the bottom of that extra drawer in the kitchen. Easy upsell… oh, right. And cross-sell.

Let’s not forget books. Yes, books. Some stores have them and some don’t and there are plenty of titles out there that can be incredibly helpful when it comes to improving one’s knowledge of bettering their roll in the hay. Or taking it up the butt. Or knowing how to use sex toys. Or pegging. Or… the list goes on and on. Some books are a handy pocket-size and can easily be displayed next to the products they so carefully endorse. Who could pass up a book on pegging when they are buying their first strap-on to use on their guy? Easy cross sell and upsell. And oh, ya need lube with that, right?!

Speaking of taking it up the butt… just think of all the possibilities that lie with cross selling in the anal department. Lube. Vibes. Dildos. Butt plugs. Lube. Books. Did I mention lube? This is the perfect place to highlight those specifically blended lubes for unadulterated back door love. As we know, there are lots of them out there and this would be the perfect place to highlight them.

Let’s not forget about the guys, I mean, they still buy a bootyload of toys both for themselves and for their partners. But for those single guys, there are masturbators. And plenty of them.

So what gets guys off? Let me guess… pictures. Videos. A nice, tight… masturbator. So why not put a few best-selling DVDs next to those one-hand wonders with various lubes so a guy can sneak into a store, pick up a masturbator, lube and a DVD in one quick stop? And if you notice that guys are buying a particular photo book you have in stock, maybe put that title by the masturbators, too, because you never know what’s going to get them off. Recommend a lube next to those pocket pals and you’re sure to sell more.

By displaying products together that make sense, it shows that you think like your buyer and they’ll appreciate that. It will make them more engaged in your displays, your sharing of knowledge with your customers “This is a great anal lube to use with that toy you’re getting,” and make your store the destination you want it to be.

JOTB:

Who’s the most popular guy at a nudist camp on a Sunday morning?

The one that can carry two coffees and six donuts.

Why did the prostitute refuse to get her appendectomy sewn up?

So she could make money on the side.

Now back to thinking about all those cross selling possibilities...

Kim Airs is the founder of sexuality boutique GrandOpening.com. She is a consultant for all aspects of the adult toy industry: training, sales, marketing, etc. She loves her job!
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I'm a Blogger Now!

Monday, March 24, 2014

It’s only fitting that my first blog post would be about myself.  That may sound a little vain but since you are going to be taking the time to read what I have to say, it’s important for you to understand what I am trying to accomplish with this blog. 

First, I should be thanking my friends at XBiz, especially, Alec, Moe, Kristen, and Don.  The industry owes you guys (and the rest of the XBiz team) a debt of gratitude for continuing to be an invaluable resource for the adult industry as a whole.

Second, my blog is inspired by the other XBiz bloggers including, Lawrence Walters, Stephen Yagielowicz, and Colin Rowntree.  I hope that I can blog at the same level that you all have been.

Finally, I hope to have my blog incorporate the thoughts and ideas of other industry lawyers who continue to stand up for the first amendment and ensure that everyone reading this blog continues to be able to express themselves without the fear of government persecution.

The purpose of my blog is not only to provide legal analysis and discuss legal issues that the adult industry is facing at any given moment but this blog will provide thoughts and suggestions to help you make sound business decisions.  I intend to discuss current events and news stories that other people may ignore (intentionally or unintentionally) and I may even ruffle a few feathers in the process. 

I hope to provide my readers with the opportunity to have more information so that they can make better decisions and maybe look at things through someone’s else’s eyes. 

I’ve been involved in this industry for over a decade and have met a lot of people in that time.  I intend to use this blog to discuss topics and questions that I often hear from people who are too afraid to speak publicly. 

I don’t expect all of my readers to agree with everything that I have to say but I will do my best to make it clear where my positions come from.

I hope that you will continue to follow my blog and if any of you have any questions or topics that you would like me to discuss please email me at corey AT myadultattorney.com or contact me via Xbiz.net.

Corey D. Silverstein is the managing and founding member of the Law Offices of Corey D. Silverstein, P.C. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processing companies, website owners and performers, just to name a few. Mr. Silverstein is especially familiar with the latest amendments to 18 USC 2257, filing and defending DMCA related complaints, obscenity laws, first amendment issues, copyright claims, corporate law (including international incorporation), criminal defense and various other areas of the law. Mr. Silverstein is an acclaimed litigator and dispute resolution specialist. His practice also concentrates on complex contracts, business structure and formation. Mr. Silverstein prides himself in providing prompt and aggressive representation tailored to each of his clients' individual needs. Mr. Silverstein is regularly featured in adult periodicals and has been quoted and published in mainstream media including the New York Times, FOX News, MSNBC, the Miami Herald, the Washington Post, the Detroit News and the Associated Press. Mr. Silverstein can be reached through Myadultattorney.com or by email at corey@myadultattorney.com. Mr. Silverstein can also be contacted by telephone at 248-290-0655.
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2257 Abuse

Friday, February 28, 2014
By Lawrence G. Walters, Esq.

Title 18, U.S.C. Section 2257 (“2257”) has long been a thorn in the side of content producers and webmasters in the adult industry, but now, the controversial statute is being utilized in ways never intended by the drafters of the legislation.  Purportedly created as an effort designed to prevent the proliferation of child pornography, 2257 has historically been used by the federal government as a tool to enforce producer compliance with its onerous record-keeping and labeling obligations designed to verify the age of models appearing in sexually-explicit imagery. Some records inspections have occurred by the Attorney General’s office, although actual prosecutions under the law have been essentially non-existent.  Recently, however, the statute is being adopted by litigants, industry participants, and governmental agencies as a sword wielded against adult businesses, instead of the protective shield it was meant to be.

A little over two years ago, the industry witnessed the first use of 2257 in a copyright battle between two adult businesses in federal court. In a lawsuit filed by Ventura Content, Ltd. (a.k.a. Pink Visual) against the tube site Motherless.com, the former alleged, among other claims, that Motherless failed to maintain performer records as dictated by 2257 and failed to post the mandated disclosure statement on its website. The requested relief? Ventura asked the court to shut down the tube site based, in part, on its failure to comply with 2257.

Although the ability to protect against copyright infringement is an essential goal in the adult industry, insiders using 2257 as a weapon to battle each other in court sets a dangerous and unsettling precedent. The DOJ’s enforcement of 2257 is intimidating enough, but the thought of a litigation strategy designed to shut down adult media for violations of the statute would add a layer of credibility to 2257 that threatens the industry’s challenges to the statute, and is ultimately self-defeating.

Much more recently, in November of 2013, a John Doe defendant asked a court to examine Malibu Media’s 2257 records in order to, essentially, invalidate their copyright infringement claims against him. Doe was accused of illegally torrenting 19 of Malibu Media’s copyright films and in turn, made the claim that if a film is not accompanied by adequate 2257 records, then it may not be validly protected under copyright. The case is currently still pending.

Although Doe’s attorney’s strategy may have been a bit of a long shot (as it would be impossible to know the status of plaintiff’s 2257 records short of inspecting them himself), the point is not necessarily whether these 2257 abuse tactics are working, the concern is that they are being employed at all. While these instances of using 2257 to buttress industry infighting are the most prominent, there have been others and the trend is disturbing.

The abuse of 2257 unfortunately doesn’t stop with adult industry participants and John Doe defendants, however. Recently, unconfirmed reports indicated that Cal/OSHA has been subpoenaing 2257 records for various adult content producers with an insidious and ulterior motive: busting the companies for violating the LA County ordinance colloquially known as Measure B, requiring condom usage in adults scenes shot within the county limits. According to these reports, Cal/OSHA obtained the 2257 records in order to ascertain dates and times of shoots – information that would necessarily be contained in the 2257 records.  Thus, the County would be able to confirm whether the producers are complying with Measure B and pulling the required permits. If it finds out they are not, Cal/OSHA can impose heavy fines. CAL/OSHA records do confirm that the companies are being investigated.   

It seems as though instead of simply maintaining records to ensure age verification, adult industry producers now need to worry about a slew of ancillary legal concerns relating to their 2257 compliance.  Any problems with a producer’s compliance regime could prevent them from enforcing their copyrights or result in an unfair competition claim by a ‘holier than thou’ company who claims perfect compliance.  The problem is: there is no perfect compliance.  The byzantine regulatory scheme created by Congress and the DOJ poses risks of technical violations for even the most diligent producer.  Any effort to give credence to an ill-conceived law like 2257 is, at a minimum, bad karma, and at most a tacit admission of the validity of the law.  My humble recommendation; leave 2257 out of the industry infighting, and adopt a cohesive position regarding the unconstitutionality of the burdensome federal statutory abortion we know as 2257.

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Censorship in the UK

Monday, February 17, 2014

Regulators in the UK are creating an unprecedented wave of censorship that not only pushes for filters at the ISP level, but also criminal prosecution for consumers of what government officials consider “extreme porn.”  I have had the pleasure to work with a group of anti-censorship activists in the UK who are standing strong to protect speech in the UK and curtail the crusade UK’s Prime Minister Cameron has waged against adult content. As is always the case, those who wish to control speech try to marginalize people and groups who stand up against censorship by labeling them extreme. That is why I felt compelled to ask Jerry Barnett – the founder of Sex and Censorship – to provide a brief overview of censorship in the UK.  Jerry has been labeled as extreme because he refused to crawl into bed with UK regulators and instead consistently fights for the rights of content producers and all citizens of the UK.  Thank you Jerry and your coalition of anti-censorship grassroots activists for your incredible work. – FSC CEO Diane Duke

From Jerry Barnett…

While we at Sex & Censorship are following – with increasing trepidation – the endless drift towards censorship in the UK, we’re sometimes reminded that many of our supporters can’t keep up with all the news and events. That’s hardly surprising: Britain is currently experiencing wave after wave of moral panic, and it seems that hardly a week goes by without more bad news for free expression.

So here is a brief round-up of some of the main issues comprising British censorship at present.

Of course, a short blog post can’t hope to explain everything that’s taking place. I’m currently documenting British censorship in a book, Porn Panic: please join our mailing list to be alerted when this is published.

Law

  • The Obscene Publications Act: the granddaddy of all censorship laws, outlawing the distribution of content that might “deprave and corrupt” its audience.
  • Video Recordings Act: since 1984(!) the BBFC (a private organization) has had the right to censor videos and DVDs, and they seem to have a particular problem with pornography, making UK video among the most censored in Europe.
  • Protection of Children Act: originally designed to criminalize images of child abuse, but sometimes misused, even to harass viewers of legitimate pornography.
  • Dangerous Cartoons Act: yes, you can become a sex offender for possessing a sexual cartoon featuring a character that might appear to be under-age - such as seen in popular Japanese anime cartoons.
  • Extreme Porn Law: three years in jail for possessing images of what the government considers to be “extreme pornography” – even if they are images of yourself participating in consensual sex with your own partner.
  • Rape Porn: a planned extension to the extreme porn law whereby you can be jailed for possessing an image of a sexual act that appears to be non-consensual (whether it is actually consensual or not). Quick, delete those bondage photos!
  • Gagging law: no, it’s not about blowjobs: it’s a serious attack on the rights of political campaigning organizations to speak freely, disguised as a law to regulate lobbying.

Regulation

  • Although they’ve never been mandated by Parliament or the British people to do so, Ofcom have consistently refused to allow hardcore sex on TV: even on adult channels at 3am. Almost all other EU countries, and the US, allow porn to be broadcast.
  • A private body, ATVOD, has taken it upon itself to drive much of the online porn industry out of the country, or out of business, by mandating strict website guidelines that make profitable business effectively impossible. They claim an EU directive gives them this right, although strangely, none of the other 26 EU member states have taken this action, and erotic/sexual material continues to be sold legally elsewhere in Europe without such restrictions.
  • Internet blocking: There were at least two attempts to introduce mandatory Internet censorship laws into Parliament last year; while these both failed, we expect similar laws to have more success in the near future.

ISPs

  • Mobile networks: since 2004, mobile operators have voluntarily censored Internet access from phones until the owner proves they are over 18. This censorship covers all sorts of material, and many adults as well as teenagers are denied access to much of the Internet from their mobile phones.
  • Broadband filtering: since December, ISPs have voluntarily begun to offer “porn filters” to home-owners, under the pretext of “protecting children”. However, these filters block, not just porn, but dozens of categories of content for entire households, and offer the bill payer a means of restricting Internet access for others in the same household.

Policing Speech

A raft of laws against “malicious communication” and “terrorism” have been used to jail people for speech alone. Increasingly, the important line between expression and action is becoming blurred in the eyes of the UK authorities. These days, writing can be considered terrorism, and jokes tweeted in poor taste can see you dragged into court.

Academia

There is a worrying trend towards increasing censorship within universities, which (one would have hoped) should be beacons of free expression, debate and discussion. For example, several student unions have banned the Sun newspaper, not for its dodgy news or political bias, but for displaying that most terrible thing, the female nipple. Atheist groups have also had material banned in case it offends religious groups.

Censored UK is a reality.

Free Speech Coalition (FSC), the adult industry trade association for the U.S., was founded in 1991. Its mission is to protect and promote the well-being of adult industry businesses and industry members.
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FSC 2013: A Very Busy Year!

Thursday, February 06, 2014

As 2013 closes and we look forward to a new year, I wanted to thank all of our members for their generosity and support. I would like to thank the members of our Board of directors for the countless volunteer hours and their tireless commitment. Finally, I would like to share just some of the projects on which your trade association worked.

Coordinate funding for Measure B Litigation

FSC helped bring together the litigation team that eventually sued LA County over Measure B, and coordinated the fundraising to fund the effort. We are almost to our goal and have been successful in raising over $200,000 so far from a number of different industry members so that no one company bears the brunt of the expense. Our lawsuit continues and the prospects are promising.

Pleasure Products anti-piracy/counterfeit pilot

Just as online piracy has slashed revenues for adult content, so has online counterfeit products cut into revenues for pleasure products. FSC partnered a top online anti-piracy company with two key pleasure products companies to create a pilot for closing down counterfeit products online. Results of this pilot will be announced at FSC’s Summit at the XBIZ conference in January.

Block AB 332 and AB 640

FSC worked extensively with industry members, lobbyist and coalition partners to kill California Assembly Bill 332 which would mandate barrier protection and many over-burdensome record-keeping, training and vaccine requirements for the adult production community. AB 332 died in the Assembly Appropriations Committee and AB 640 never made it to the floor in the Senate.

PASS (Performer Availability Screening Services)

FSC worked with its PASS testing facilities and Medical Advisory Board to ensure that performers received state-of-the-art testing and preventative care. This year three performers contracted HIV in their personal lives. Because of the protocols in place and the systems established, we were able to quickly identify and isolate the infections so that no transmission occurred on set. Our doctors monitored the situation and decisions were able to determine when and how to call and lift the industry moratorium based on solid medical principles.

2257 Litigation

We in the adult products and entertainment industry know that 2257 is overbroad and over-burdensome. That it requires “secondary producers” to keep records that in some cases are impossible with which to comply. This is FSC’s last opportunity to strike 2257 down and our attorneys are fighting a valiant and brilliant fight. We are in the appeal phase of the litigation and our case will go before an appellate panel that has ruled in our favor in the past. It is likely that this issue will be settled once and for all in 2014. We have fought a long and expensive battle and have taken on this case so that no one company will have to bear the burden.

UK anti-censorship

On December 12th, the UK government’s internet oversight entity ATVOD (Authority for Television On Demand) is holding a conference entitled “For Adults Only-protecting children from online porn.” FSC was asked to be on a panel at that conference where we will present to UK policy makers. What is interesting about this conference is that it is obvious that the folks at ATVOD are using this this venue to promote the UK Prime Minister Cameron’s pro-censorship agenda. FSC has coordinated a PR campaign with UK adult industry members to inform Brits of about government censorship and build a base of opposition to unwarranted and overreaching government regulation.

COE (Code of Ethics)

A few years ago in with a great deal of feedback from the industry, FSC created a Code of Ethics (COE) for the Pleasure Products and adult entertainment industry. In January FSC will provide industry members with the opportunity to sign on to the COE and display the COE seal of excellence on their website, store and place of business. We know that our industry members have high standards and values—now it’s time to tell the rest of the world.

FSC Summit

Working in conjunction with XBIZ, FSC coordinates the FSC Summit designed to educate pleasure products and adult content professionals on current events impacting their industries. Last year FSC brought lobbyist, PR professionals, and attorneys together with industry professionals to discuss…Measure B what now? This year we will have the CEO of Film LA, CalOSHA lobbyists, a Measure B attorney and more facilitating a discussion on the status of 2014 California Content Production. In addition, we will announce the results of a groundbreaking anti-online counterfeit pilot for pleasure products.

CalOSHA

CalOSHA has paid visits to a number of content providers’ places of business—mostly due to bogus claims made by Mike Weinstein of AHF. FSC has assisted members who have been visited and helped them navigate what to do when CalOSHA comes calling. Additionally FSC has a CalOSHA lobbyist who is working to prevent restrictive regulations from moving forward and helps the industry organize around this complicated rule-making process.

Voice for the industry with media and elected officials

FSC has met with numerous state and federal lawmakers and regulators. We have organized editorial board meetings and interviewed with countless local national and international media. We have built relationships with coalition partners like the Valley Industry and Commerce Association and Electronic Freedom Foundation and have friends who are now willing to stand up for us in public. FSC is a voice for the industry, we will defend your rights and advocate for better business opportunities. We have your back.

Wishing you all a very Happy New Year!

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Your New Competition

Tuesday, February 04, 2014

If you don’t know who Hannah Montana is and what she has to do with the outrage over Miley Cyrus’ foam finger, then you are out of touch with the world around you.

Although I’m quoting yesterday’s old news as an example of being dated in a fast-paced world, any other example would likely be equally irrelevant by the time you get to read this post, so fickle and fast-changing are the tides of fashion.

There’s a brief line in one of my favorite songs, “A Merman I Should Turn to Be,” by Jimi Hendrix, echoing “We take our last look at the killing noise — of the out of style...”

Back then, a half century ago, the need to keep up with the latest style was paramount just as it is today; but to do so requires a youthful view of what is cool and what is not, influenced by a set of factors that changes with each passing generation.

While Jimi was no doubt cool in his day, he was the artist that today’s consumers’ grandparents rocked out to — and few kids will admit to digging gram-gram’s jams.

Let’s face it; if you’re old, then you just don’t “get it” — or so the kids think.

I’m sure that many of us can relate to having this feeling in our youth — while those of you that are still young may live long enough to understand the feeling of being on the other side of the equation.

It is with such cheerful thoughts that I viewed the family sitting at the next table while out to dinner the other night. Well, it wasn’t the family per se, it was the youngest girl at their table — a child who did not look quite old enough to be attending school yet.

She was feverishly typing, swiping and scrolling on a tablet, while waiting for her food to arrive. Once dinner was served and her mother made her put her tablet away the young lass continued on the sly — nimbly texting on an iPhone hidden under the table.

I felt terribly obsolete as I surveyed this scene.

Not only was this child beginning a life that I can’t relate to (and thus will have a hard time marketing to), but at some point, her and her peers will become my much more tech-savvy competition, immersed from birth in digital technology.

I know that I am not alone in feeling this — and that she is not alone, either. Indeed, a new generation of kid-friendly tablets and other devices are changing the way that future customers perceive media and the value of information — and marketers who are unable to keep pace with these changing expectations are certainly doomed to failure in today’s increasingly competitive marketplace.

Check out Wal-Mart (www.walmart.com/tp/tablets-for-kids) for an example of what I’m on about and how what we see as hi-tech today will be quaintly nostalgic tomorrow.

Keeping ahead of (or at least abreast of) the curve becomes vital.

There are many available barometers of pop culture, and in fact, a whole subset of the mainstream marketing world is devoted to this never-ending study of art becoming life.

For a crash course in what’s hot today, I’ll point to one of my lovely wife Dawn’s favorite media outlets, E! The company’s E! Online site (www.eonline.com/trends) offers a section devoted to the latest trends in beauty, fashion, food and living, which can point you in the right direction, whichever way the winds blow.

More useful from a strategic marketing standpoint is sites such as TrendHunter.com, which according to the site is “the world’s largest, most popular collection of cutting edge ideas [that] help creative people Find Better Ideas, Faster.”

There are many other outlets for helping you to keep in touch with the pulse of the modern marketplace and its changing demands. If you prefer to stagnate, however, then perhaps instead of Jimi Hendrix I might have earlier quoted The Who’s Roger Daltry, as he exclaimed, “Meet the new boss…”

Hopefully we’ll stay ahead of the game, instead of uttering that prophetic statement while wandering dazed through a maze of cubicles and wondering “what just happened?”

Enjoy 2014 but keep a close eye on the competition that is fast rearing up behind you — those kids are smarter than you think — and will want something you don’t yet have.

Learn what that is, and your future success will be assured.

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Witnessing Transformation – Performers into Producers

Tuesday, January 21, 2014
By Lawrence G. Walters

The beginning of a new year in the adult entertainment industry is always filled with excitement, trade shows, and hopes for success in the year ahead.  Now is also the time when the industry tries to identify upcoming trends in production and distribution of erotic content.  Fresh in the minds of many performers and producers are the battles over condom laws, and production moratoria resulting from STD outbreaks. This, combined with advances in technology and plummeting DVD sales, has encouraged many performers to explore alternative forms of erotic entertainment to fill the gaps between shoots.  Some choose escorting or headlining at strip clubs.  But many others have turned to lucrative live webcam performances and custom video-production.

The effect of these erotic alternatives has been to cut out the middlemen; i.e., the talent agencies, producers, and photographers.  All that’s required is a webcam, a good broadband connection, and a knack for turning on your target audience.  Many webcam platforms and escort advertising networks allow the performer to take control of his or her content production and therefore, directly profit from the work.  With a little creativity and work ethic, some performers have found that webcam performances or custom, amateur videos can be even more lucrative than professional porn shoots.  The new middleman is the webcam platform provider or the clips sales studio.

Interestingly, as technology fosters a more one-on-one interaction, the tastes of typical erotica consumers have evolved as well.  Why lust after the unattainable blonde bombshell, when that webcam performer with the ‘girl next door’ look might actually be the girl next door?   The evolution of technology has allowed the performer to create, market, and distribute their material, all the while inviting customers into their reality.  The average porn consumer now wants to know things like what their favorite performer had for breakfast, how they get dressed in the morning, and their plans for the evening.  Call it a byproduct of a reality TV-obsessed culture, or just living in the age of social networking; all the world’s a stage and performers are more than willing to share the intimate details of their lives with customers.  Ten years ago, an autographed DVD might have been a prized possession for a devoted fan.  Now, last night’s panties are up for grabs – for the right price.  Some performers may even go the extra mile and engage in intimate contact with fans on camera, as a promotional tool.  The popularity of this type of interactive sex and performer/fan dynamic was even the focus of HBO’s premiere of SEX/NOW; the network’s reboot of Real Sex.    

So what does this mean for the performer now turned producer of his or her own material?  Most importantly, all of the legal obligations that used to be handled by the producer, photographer, talent agent or other intermediary now fall squarely on the performer.  These legal concerns include Section 2257 records keeping compliance, content clearance, licensing of rights, copyright registration, fair use concerns and trademark issues.  Can I show that painting in the background of my cam shot?  Will the RIAA come after me if I play music during my cam show?  Just because technology allows a seamless transition from performer to producer, does not necessarily mean that the law does the same.

Most cam performers are unaccustomed to dealing with these technical issues and mundane legal obligations – particularly if they have relied on professional producers to handle such matters in the past.  In some ways, we’re all in the same boat.  Anyone who posts a comment on Facebook, or a review on Amazon, is a worldwide publisher.  Anyone who uploads a picture to a blog or forum is a media producer.  That power triggers significant legal obligations.  Issues like defamation, fair use, and commercial exploitation used to be the exclusive province of powerful media stakeholders like the New York Times or NBC.  Now, these issues impact anyone with a smart phone or social networking account.  Add on the additional layer of legal regulation imposed on erotic content, and performers can often become overwhelmed with compliance issues.  With industry-specific devices and applications expressly designed to simplify the process of production and publication, technology can help ease the burden, but only to an extent.  Autonomy requires proactive measures.  If performers wish to capitalize on self-production trends and continue forging virtual relationships with their fan base, the keys to success are education and preventative solutions.  The performer turned producer must learn to recognize the legal issues before they become legal problems. 

Lawrence G. Walters heads up Walters Law Group, which has advocated for the adult entertainment industry and Free Speech issues for 25 years.  Nothing contained in this post is intended as legal advice.

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