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A Slow Starter

Thursday, April 02, 2015

There are many business segments that experience a long buying cycle — where the time between a prospect’s first exposure to your product or service, and the point at which a positive purchase decision is made, can span years — and in the case of really big-ticket items, such as roadways and various other infrastructure assets, decades can lapse between someone’s bright idea and its actual implementation.

This plays out in the online adult entertainment industry in several ways. For example, joining a paysite is usually a spontaneous, impulse purchase — while cam site patrons may take some time to spend their initial credit package, and even longer to buy more tokens. Anecdotal reports of decent performance by long-held but inactive accounts reveal that some cam fans may take a year or more to commit to buying more credits — underscoring the need for remaining in contact with customers for as long as possible.

The mainstream consumer space also faces this need to cultivate contacts with customers in order to keep their offers front and center, until an appropriate motivator closes the sale — with convenience and cost influencing the timeline.

For a personal example, I’ll point to Nikon, which has a small widget that pops up on my desktop from time to time, to bring me their latest news. It’s a perhaps monthly reminder of our relationship, using their logo and colors to break through whatever I might be doing at the time, via a scrolling text box.

It’s a relationship that has lasted for decades, and will continue for life. The next incarnation of our connection will be the 58mm f1.4, a superb piece of glass, that along with a protective filter, runs about $2,000 with tax. I wasn’t able to buy it last year — and may not be able to buy it this year — but by early next year, it will find a place in the new camera bag I’ll have to buy to be able to carry this extra lens...

This lengthy purchase timeline is a simple matter of cost and priorities, and between now and the day I hit the “buy” button on the B&H website, I’ll read every new review of that lens I can find, even though I am already committed to purchasing it in the future. In the meantime, Nikon and B&H are sure to stay in touch with me, to let me know of any specials.

As for the present, this morning I purchased a hand grip strap and neck strap for carrying my camera — perhaps not the most noteworthy accomplishment, but it was a long time in coming — and the first time I ever used Amazon.com. While my wife uses Amazon, and I have seen the site before, it was the $100 in year-old Amazon gift cards I had sitting in my desk drawer that finally inspired me to create an account, log in and search for an item that I wanted to purchase: the Peak Design “Clutch” — a flexible hand strap system for my Nikon, which is ideal for my style of shooting.

I learned about the Peak Design “Clutch” by clicking their ad on Facebook — the first time I ever clicked a web ad as “a consumer.” I clicked, visited and bookmarked the site, watched their videos and decided to buy their full neck strap system as well. That was weeks ago — but I placed the order this morning, because I just found the Amazon gift cards while searching for wayward tax documents.

I ended up paying $6 to cover the sales tax California now imposes on Internet orders, so it was a great deal for me, and the process was a win all around: where I have a new way to carry my camera, used my gift cards, and tried something new, all in one go. Amazon and Peak Design both have a new customer — plus the promo benefits of me telling you about it.

Next up, I have an iTunes gift card (and word this morning of another one on the way), which I can add to the $50 that Apple added to my account a couple of years ago when I bought my iPad 3. It seems that you can buy music from this iTunes thing, so I won’t have to listen to those songs on YouTube anymore.

I will have to give that a try...

The point of this story is that when you are evaluating the effectiveness of your advertising and other promotional efforts, keep in mind that not every sale occurs immediately — and that keeping in touch with your customers long after an initial sale or point of contact may result in an eventual windfall.

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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Stealing Website Terms & Policies – Not the Best Idea

Tuesday, March 31, 2015

The Internet has become a notorious breeding ground for poaching others’ intellectual property. While all forms of IP infringement are discouraged, one in particular can create a massive headache for Internet businesses: misappropriation of another website’s Terms, Conditions, Policies & Disclaimers; and/or more broadly, legal web documents. While many may be enticed to simply swipe another’s Terms to avoid the legal costs of having an attorney draft brand new web documents, it’s simply not worth the risk.

Initially, there is the very obvious problem that another website’s Terms likely will not apply to your business. At the broadest level, different websites operate different business models and each set of Terms is ideally drafted for only one website running a specific business model. Similarly, even if the website operations are similar, there is always the possibility that Terms lifted from another website are outdated or flawed. The site that posted the stolen terms may, itself, have lifted them from another inapplicable site, or may be relying on Terms that were drafted before important legal development occurred.  A few years is like an eon for Internet Law, and much happens in a short period of time.  Cases decided in the last year have had profound impacts on how Terms directed at consumers should be drafted and implemented. 

Even if parts of the lifted Terms are up to date and relevant to your business model, certain very specific clauses could be inapplicable, causing problems in relationships with your users. For example, billing provisions, dispute resolution options, and choice of law clauses are all areas which require specific and careful review before posting within legal web documents. Using another state’s (or nation’s) laws, or consenting to be sued in another remote jurisdiction, can have disastrous consequences for your business in the event of a dispute. Even claims brought by non-users can be impacted by these venue and choice of law provisions.

There is also a danger with broadly copying and pasting another website’s legal policies when it includes the name and contact information of the original company. Often this information is buried in the “fine print” or in a copyright disclosure, and easy to miss. Aside from being a clear indication of a copyright violation, this type of wholesale copying can invalidate the entire agreement because it is formed with a completely different entity than the actual website operator. Court’s will not overlook this type of plagiarizing.

A specific issue that our firm routinely sees with legal policy theft is inadvertent copying of a DMCA notice & takedown policy, identifying someone else’s designated DMCA agent.  Posting someone else’s DMCA policy can result in a complete loss of DMCA safe harbor, and the fraudulent suggestion that someone is acting as your DMCA agent, when they are not.  This is a large problem for “while label” programs, wherein the “white labels” erroneously presume they have permission to utilize the sponsor’s Terms or web documents, but usually, that’s not the case. More importantly, even in situations where the sponsor explicitly gives permission for the use of their Terms, use of the DMCA agent listed in the sponsor’s Terms is typically not part of the deal. Absent a specific agreement by the designated DMCA agent to act on your behalf, it is not likely that DMCA notices directed to your site will be processed in accordance with federal law.  DMCA agents must file a designation with the U.S. Copyright Office listing all sites subject to the designation.  Your posting of a copied DMCA policy will not suffice to trigger safe harbor protections, or give any notice to the DMCA agent that your site should be included in a designation. This form of copyright theft has severe consequences to any online service provider, even if the copyright holder never discovers the infringement.

As noted above, being sued for copyright infringement is a significant risk of stealing another website’s Terms. Merely changing a few words here and there will not prevent the stolen Terms from being considered a derivative work, and thus still owned by the original author. Statutory damages in a copyright infringement action can be anywhere from $750 to $30,000 per work, and up to $150,000 per work for willful infringement. Each stolen document would likely be considered a separate work. Attorneys fees will often be awarded in addition to damages. Risk of litigation isn’t the only consideration, however: the public perception that comes with using a competitor’s legal work can negatively and significantly impact credibility, both with consumers and in the industry, generally.      

Developing your own set of website Terms and other legal web documents is important beyond the reasons listed above. A well-drafted set of web documents creates clearly established policies for both users of the site and third parties; the latter through documents outlining Subpoena Compliance and the site’s DMCA Notice and Takedown Policy. Legal protections like Section 230 protection, DMCA safe harbor, and sometimes Section 2257 exemptions, will be impacted by proper legal terms.  Quality web documents can help outline potentially unlawful uses of the site, protect intellectual property, allocate liability, and provide important disclaimers. Finally, as noted, paying careful attention to important provisions such as choice of law, dispute resolution, and any applicable arbitration and/or mediation requirements is critical for protecting your online operation.

While an experienced Internet attorney will require compensation for drafting important legal terms, often the process of discussing these documents will lead to important modifications in internal operating procedures, as the legal consequences are evaluated.   

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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Your Permanent Record

Wednesday, February 18, 2015

As a young man in grade school, I was kept in line by strict nuns threatening me with “black marks on my permanent record” — a nebulous but omnipresent scorecard of our success in life that determined our future prospects for everything from our education to employment, from community esteem to political electability, and more.

Pre-Internet, this “permanent record” was much less comprehensive and less widely available than it is in today’s cradle-to-grave social media world — where all of our most personal activities, choices and moves are voluntarily chronicled for the whole world to see. Beyond the online realm, sharing our lives with the people we care about is only human, and it occurs in a wide variety of ways.

For example, at the 2015 XBIZ Awards Show in Hollywood, a video featuring adult icon Christian Mann was presented, where he offered his personal insights during the last days of his life. It was a personal and moving tribute to a man who had touched so many lives and who had been such an important part of the industry’s growth and whose passing led to a palpable feeling of loss. So I was surprised to receive an email from Facebook a couple of weeks later, inviting me to wish Christian Mann a happy birthday...

According to Facebook, it is a place to share and connect with friends and family — perhaps forever.

“For many of us, it’s also a place to remember and honor those we’ve lost,” explains a Facebook rep, adding that “When a person passes away, their account can become a memorial of their life, friendships and experiences.”

To assist this process, Facebook recently introduced a new feature that allows users to designate a legacy contact that is authorized to manage their account when they pass away. A deceased user will have their account memorialized, and the legacy contact will be able to write a post to display at the top of the memorialized Timeline. The contact may also be allowed to respond to friend requests; and able to update the profile picture and cover photo. If authorized, he or she may also download an archive of the photos, posts and profile information the deceased user shared on Facebook.

The Facebook rep explains that to protect people’s privacy, the legacy contact will not be able to log in as the person who passed away, or to see that person’s private messages, and that users can specify if they would prefer to have their Facebook account permanently deleted after their death.

“Until now, when someone passed away, we offered a basic memorialized account which was viewable, but could not be managed by anyone,” the rep stated. “By talking to people who have experienced loss, we realized there is more we can do to support those who are grieving and those who want a say in what happens to their account after death.”

Memorialized profiles contain a “Remembering” designation above the user’s name, with participation in this afterlife affirmation being completely optional.

“Our team at Facebook is grateful and humbled to be working on these improvements,” the rep concluded. “We hope this work will help people experience loss with a greater sense of possibility, comfort and support.”

It is not a sentiment that should be taken lightly, given the lifelong bond that younger generations are building with the social networking giant.

“On Facebook, life begins at conception. ‘We’re expecting!’ your parents post. You don’t have fingers but you’re already accruing likes. A shared sonogram means hundreds have seen you before you’ve even opened your eyes. You have a Facebook presence despite lacking a physical one,” Josh Constine wrote for TechCrunch.com. “And when you grow old, your family will ask their friends to keep you in their prayers. But when you pass, you won’t disappear. Your profile will become a memorial page, a shrine to the moments of your life that you converted from atoms to bits. And once again, you will have a Facebook presence without a physical one.”

In an era when porn stars and legitimate adult entertainment companies are losing bank accounts and face discrimination in employment, housing, schooling and more, it is increasingly important for people to have the opportunity to curate their social media profiles and other publicly accessible information — even after their death. The alternative is to be saddled with a truly permanent record — one that will far outlast your temporary decisions on Earth.

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A Fresh (Re)Start for 2015

Tuesday, January 20, 2015

Every New Year is another chance for a fresh start, and often, a re-start — where ongoing projects get a new lease on life — with a renewed sense of optimism and vigor on the part of their creator. Sometimes the motivation is simply to finish what you started. Sometimes it’s a matter of seeing new opportunities in an existing product or service. Other times, you need to do something different, from the ground up.

Whatever the reason you may have for refreshing past projects or starting new ones, you are not alone.

At the recently concluded XBIZ 360 event in Hollywood, I had the opportunity to moderate the billing panel and ASACP’s age verification workshop, and also conducted video interviews with exhibitors at the popular Mix & Meet event. I spent a lot of time interacting with a wide range of adult entertainment industry movers and shakers, and came away with a very positive vibe — where the consensus was not only that many adult industry segments have turned the corner and are now increasing their revenues — but some are now also poised for explosive growth as new technologies and business models unfold.

The common thread among the most optimistic players was the uniqueness of their latest offers, which was underscored by the role that the breakthrough Oculus Rift immersive technology is playing in the new version of the Red Light Center 3D virtual world, whose parent company Utherverse Digital Inc.’s CEO, Brian Shuster, gave the event’s Digital Keynote address, and who demoed the device to attendees.  

Another example was the Fleshlight/Kiiroo World Premiere, which debuted the latest in haptic sexual technology, where touch sensitive dildos remotely control a user’s Fleshlight — providing the ultimate in two-way cam driven connectivity, where a performer’s actions are felt and not just seen. Existing videos can also be encoded with the appropriate commands to “match the action.” The Fleshlight/Kiiroo demo further featured a video showcasing its integration with Oculus Rift.

The future of porn will be unlike anything you have ever seen before, and will revolutionize the industry.

Beyond these high-dollar efforts, smaller operators are also making moves — releasing new offers while upgrading old ones — and coming up with some excellent and innovative products, services and sites in the process.

On a personal level, I’ve pared down my projects and will continue to cast away the dead wood while focusing on my favorites — such as my gamified free site: hand built, valid HTML5 and CSS3 compliant, she’s ready to rock and just needs me to add more content and some more traffic. It’s the challenge of old school webmastering in 2015 that appeals to me, as I figure out the workarounds to the site’s iOS / HTML5 audio compatibility issues and other minor puzzles. For me, it is a perfect example of passion over profits — developing a unique and addictive user experience that lays the groundwork for more.

My site is the result of me wanting to take the same content and repackage it into a unique presentation — countless other sites offer the identical non-exclusive content that I am offering, but none are doing it in the same way as I am — because sometimes it’s not the steak that sells, it’s the sizzle.

A mainstream example of this can be found in my home state of New Hampshire, which recently launched its first scratch-and-sniff lottery ticket — the $1 “I Heart Bacon” scratch ticket that pays winners up to $1,000 — and rewards all players with a distinct bacon aroma when it is scratched...

N.H. was the first state in the nation to offer various “lotto-type games and numerous scratch games,” pulling in a reported $280 million in 2013. Many other states have joined the lottery frenzy, adding competition to the scratch ticket market and leading The Granite State to offer this unique scent slant — which garnered 700,000 ticket sales in its first week, taking the top slot in $1 ticket sales.

“The [N.H.] Lottery is focused on developing new and fun ways to engage customers,” New Hampshire Lottery Commission Executive Director Charlie McIntyre stated. “The ‘I Heart Bacon’ scratch ticket combines two things people love: the chance to win cash and the wonderful, enticing smell of bacon.”

To promote the new ticket, lottery officials will give away the scratch tickets with free slices of bacon at several locations throughout the state during the month of January. The smell of bacon, it seems, spurs sales, and the rate of repeat buys of these tickets is climbing rapidly.

Just when I thought there was nothing that would distinguish lottery tickets from one another than the common size, shape, cost, payout and obligatory catchy name and graphics factors, this porky wonder comes along, upsetting the creative apple cart.

Take a lesson from this out-of-the-box thinking and see if there’s something different that you can do to freshen up or launch an offer in 2015 — the timing may be better now than it has been in a long time. 

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Someday Never Comes

Monday, December 15, 2014

Editor’s note: The following missive is not my typically technical fare, but a hopefully inspirational cautionary tale of the inevitable future. Bear with me, for as embroiled actor and pro pudding peddler Bill Cosby used to say at the opening of his old televised cartoon series “Fat Albert and the Cosby Kids,” “…if you’re not careful you may learn something before it’s done.”

As a teenager, I was enthralled with the fast times, freedom and cross-country fun on a customized Harley Davidson motorcycle that Peter Fonda and Dennis Hopper portrayed in 1969’s counterculture classic road movie, “Easy Rider.” My bedroom was adorned with a poster of the iconic image of those two hippies crossing the steel girder bridges over the Colorado River — their bikes’ loud exhaust notes thundering powerfully as they made their way across the U.S. to the bawdiness of Bourbon Street and the decadence and excess of Mardi Gras in New Orleans. Upon arrival, they enjoyed a psychedelic trip with a couple of prostitutes in one of the city’s oldest cemeteries.

“How cool is that,” I thought to myself, and vowed that someday I would go to Mardi Gras.

Some 35 years later, while I have a Harley Davidson, the closest I will likely get to the annual festival is listening to the “Mardi Gras” album by Creedence Clearwater Revival, with its popular 1972 hit song, “Someday Never Comes.”

While it was for an adult entertainment convention many years ago, and not for Mardi Gras, I have been to New Orleans. After a paddle wheel riverboat ride down the Mississippi River and drunken stagger down Bourbon Street with my pal Twinkley, I never felt a need to return to that soggy Southern city — so for me, Mardi Gras in New Orleans is simply a someday that will most likely never come.

We all have these ambitious “someday” notions. Old school adult webmasters in particular have long been susceptible to this mentality, exhibited in the extensive domain portfolios we amass over the years — each the hopeful seed of a someday project, but most never seeing the light of day; just stashed away  until renewal fees exceed the value of the name or the holder’s desire to develop it.

Other times, “someday” is a part of our dreams, our lives and our plans for the future — but just as with the development of that awesome site you found a great domain for, sometimes someday never comes.

Despite the fact that I got my flu shot, take my vitamins and frequently wash my hands, I have been sick and staying inside for a few days now. I tried not to let it get me down, since the weather has not been too good and I have had a lot of work to do. But today is Sunday, the sun is shining and despite it literally being freezing outside, I figured that some fresh ocean air and a few good miles of walking on the beach would do me some good.

My father watched me drag myself off the couch, as I coughed, hacked, and tried to get it together. “Take it easy and go for a walk another day,” he advised. “No, the sun is shining today and tomorrow I have to work again,” I replied, as I laced up my big boots and hit the surf zone for some beach combing.

I was glad I did, and as I walked along considering life’s uncertainties and the importance of acting in the moment rather than wait for “someday,” I was quite pleased with my effort and my refusal to give in to my illness. 

The importance of this exercise became apparent when I returned home and received a call from my lovely wife Dawn, informing me of the sudden passing of a long time family friend: a talented Swiss surgeon who performed several of her operations, including her most recent one. He was in good health and she had seen him at the previous night’s community Christmas show, which he participated in as part of the church’s choral group. One of my father-in-laws best friends, he was a true gentleman that always made a point to greet me and shake my hand whenever, wherever, or how often we met.

Today, feeling fine and without any complaint, he sat down in his favorite easy chair and dropped stone dead away — a 68-year-old grandfather who was looking forward to his retirement and spending more time with his growing family and at his vacation home in Switzerland.

While such a peaceful and prompt passing is indeed a blessing and better than many of us may receive, the shock to his survivors and the abrupt end of his plans for “someday” again reinforced the vital need to do the things that are important — and to do them now. Whether it is building that new website, mending a relationship, taking a long sought after trip, or attaining another meaningful personal goal, putting off until “someday” what is accomplishable today, is never a good idea.

Overwhelmed by the suddenness of this event and befuddled by its mirroring of my mortal thoughts, I began thinking of the choices we make: such as whether to keep that domain and invest in developing it in an uncertain market — or pare the problem in lieu of moving on to something else. It is a question you likely feel you have all the time in the world to answer — but one day you will be wrong about it, and “someday” will never come.

As you will see in my January, 2015 “Last Word” column in XBIZ World magazine, substantial business and revenue opportunities remain in many areas of the adult entertainment industry— but these new possibilities must be embraced early on and not left to “someday” —  as it is a day that may never come.

If this seems like a bit of a rant, you can blame my cold medication, which advises users not to drive or operate heavy machinery, and perhaps should warn against writing as well. In any case, as a New Year unfolds, consider the value of striking while the iron is hot so as not to miss opportunities that seem permanent today, but may prove to be fleeting when someday never comes.

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Sex, Lies, & Sex Tapes

Friday, October 17, 2014

Sex, drugs & rock ‘n roll. That used to be the unofficial motto of Hollywood. And it worked. For years, the so-called scandals of celebrities in public were enough to keep tabloid headlines fresh, interesting and attractive to readers. Now though, it’s 2014: we’ve seen it all and it is no longer enough to simply report on what celebrities are doing in the public eye. A new unofficial motto has taken hold of those that fancy themselves the gatekeepers of celebrity information: sex, more sex, and leaked private media.

In recent times, not only have there been a rash of leaked photos from consumer-driven websites like 4chan, we’ve also lately seen stories of big name production labels, such as Vivid, considering the release of celebrity sex tapes. Rapper Iggy Azalea is at the center of the most recent controversy, with reports that a former boyfriend is shopping around a sex tape involving the entertainer to various media outlets including Vivid Entertainment.

Images or videos released to the public which were not originally meant for public consumption bring with them a wide variety of legal issues and pitfalls. That being said, there are four main issues in this realm which should be noted for anyone considering publishing this increasingly popular category of material.

Copyright: Initially, the person who created the media presumptively owns the copyright in the media. Sounds simple enough, right? Not exactly. This clear principle can quickly be made muddy, given the way we all create copyrightable “original works of authorship” these days. For example, consider the famous case of the Ellen DeGeneres Oscar Selfie. DeGeneres licensed use of the now widely known photograph to the Associated Press. But did she own the rights to license? It is unclear. DeGeneres is the one who got all the famous stars together, posed them, and set the scene for the photo. However, she was not the one to click the shutter button on the phone: Bradley Cooper was. The traditional presumption is that the photographer – meaning, very literally, the one who clicked the shutter button – owns the copyright and can distribute it.  Additional confusion arises when the photographer is acting at the specific request of another – particularly without a ‘work for hire’ agreement. Within the rash of leaked celebrity photos on 4chan, this principle would mean that the copyright in each of the selfies was owned by the celebrity who took the picture, providing that individual with a strong intellectual property case to go after anyone who published the images. Conversely, however, in the case of Iggy Azalea, if her former boyfriend shot the video, he would have a good argument as to ownership of the copyright in that case. That’s not the only consideration for leaked media, however…

Publicity/Privacy/Commercial Exploitation: Even if Azalea’s former boyfriend properly owns the copyright, Azalea, as the subject of the video, also maintains rights to control the publication of her personal depiction in the video. A model or subject depicted in media has a right to profit from the display of their ‘image and likeness.’ This is usually called the right of publicity; or sometimes, the right to commercial exploitation, and is separate from the copyright. If the recording was done in secret, there may be privacy rights at play as well. All of these rights would typically need to be waived by execution of a model release. If not, then the individual depicted in the video retains the rights, and can sue for violation of those rights. Naturally, with celebrity sex tapes, there typically is no model release signed before the ‘performance.’

Section 2257 Records: The elephant in the room regarding celebrity sex tapes is compliance with 18 U.S.C. § 2257.  As virtually all producers of erotic material know, Section 2257 imposes an obligation to review and compile certain performer identity and age documents prior to filming and/or publication. If those records were not created beforehand (which rarely, if ever, happens with a private sex tape or leaked content), the content is presumptively illegal to publish in the absence of accompanying records. The original producer must keep the original records, and all secondary producers (including webmaster) must keep copies of the records, along with generating their own records, such as the URL’s associated with the person depicted in the video. A notice of where the records are kept must be associated with the video, in the manner required by the statute and regulations.

Publication Risks: What happens if you publish a sex tape without 2257 records? The answer may depend on your role in the publication process. The original producer of the material, and the person responsible for initially uploading or publishing the material on a website, are clearly responsible for any non-compliance, which can include a multi-year prison sentence. So how are all these images being published on the Internet, presumably without 2257 records or model releases? Often, the content is uploaded by an anonymous customer of a ‘user generated content site’ such as a tube site, or posting forum like 4chan. The operator of the site will assert a Section 2257 exemption, designed to protect hosts and social networking sites from liability, and excuse their compliance with 2257 records maintenance obligations. The validity of the exemption depends on whether the site operator was actually involved with soliciting the sex tape upload; or in some cases, actually posting the content. If that activity can be uncovered, the site would almost certainly fail in asserting any attempted 2257 exemption. If the posting was done through a legitimate, unsolicited third party user upload, the site may be off the hook for 2257 compliance. Once the content appears online – somewhere – as user generated content, other ‘indexing sites’ link to it, categorize it and reproduce it, on a multitude of other sites; which ultimately display and drive traffic to the user-uploaded file. Section 230 immunity and DMCA safe harbor typically protect the tube sites and indexing sites from monetary liability for violation of publicity rights, privacy rights and copyrights, with respect to legitimate user uploaded or indexed content. All of this anticipates that the individuals depicted in the videos were over 18 years old when the content was created. If not, none of the exemptions, immunities or safe harbor protections will help the publishers with regard to child pornography allegations. Failure to report such content, once being made aware as website operator, is also a violation of federal law; Section 2258A.

Publishing sex tapes and leaked celebrity content is risky business, particularly in the absence of Section 2257 records or model releases. Celebrities have money and power…and lawyers. They can afford to enforce their rights, and may have enough influence to get law enforcement interested in pursuing criminal investigations. While some online service providers may be able to rely on federal law to skirt liability for the publications, any involvement in soliciting, posting or producing this category of erotic content generates significant legal risks.

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Batteries. Yes. Batteries.

Wednesday, September 10, 2014

Ah yes. Batteries. Can’t live with ‘em and can’t live without ‘em especially when it comes to good ol’ sex toys. While many products are being released with a plethora of new battery-charging technologies (USB chargers, anyone?), my heart and soul are forever dedicated to those fabulous AA, AAA, Cs and Ds. Yep, batteries.

Batteries and I go way back. I have always believed that every job I ever had would eventually be linked to my future life as a sex toy entrepreneur owning my own store, Grand Opening! Yes, I had a job for many months as a technical library assistant for, you guessed it, Duracell. True! And during that time and after working in so many areas of the sex toy biz, I learned so much about batteries and I’m going to share that info with you.

As we know, batteries come in all shapes and sizes and there are basically just a few sizes that are used in our industry. Let’s look at all of them after we learn about some basic battery care.

Probably the most important thing to know about the most common cylindrical batteries is that there is metal at both ends. I know you’re thinking “Duh” but did you know how careful you should be with them? Whenever the metal end touches anything metal, it will create a slow and painful death for your battery, slowly drawing energy from it and making it conk out much sooner than it should. Keeping your batteries in a pile or in a metal coffee can will kill them quickly. Best to store batteries on their sides, in a cardboard or plastic container so the ends won’t come in contact with anything metal. In fact, I store my batteries in a plastic pencil container and they fit in it pretty well.

Some people keep their batteries in the freezer but it is generally not recommended for today’s batteries as condensation can build up on them and in them. Best to store them at room temperature… in plastic or cardboard.

Getting back to storage and whether or not you should leave batteries in their designated products, well, think about it. If metal drains batteries and the battery contacts in vibrators are metal… well, better make that vibrator a dildo by keeping the batteries out of it until you’re ready to transform your toy into a vibrator to buzz away. Put those batteries in before you apply lube to your fingers and giblets and you should be good to go after that.

Another difference to be aware of is that of alkaline vs. carbon batteries. Carbon batteries are kind of old school: they are lighter in weight and sometimes don’t last as long as alkaline ones (more on that in a moment). But the thing is, if a vibrator runs particularly and peculiarly hot, one might want to switch over to the lesser-powered and not-as-hot carbon batteries. They will work as well without making your battery-powered vibrator feel as hot to the touch. Carbon batteries are often branded as Everyready batteries and Panasonic batteries and you can read the package as to what batteries are made of what.

Alkaline batteries are the industry standard these days with Duracell and Energizer leading the pack on these. They may run hotter than carbon batteries because of the more concentrated power but they do tend to last much longer.

Now, we also know that SIZE MATTERS! Before, the thinking was the bigger the batteries and the more of them, the more powerful the vibrator will be but since technology has outpaced popular thinking, there’s some suckers out there that sure pack a wallop and run on several teeny tiny batteries. So let’s see what size is all about…

The small “button” cell batteries, commonly known as LR44 (or A76 or AG13 size), are used in many small vibes, including those in cock rings. Stumbling around the web, I came across http://www.lr44batteryequivalent.org/ which really spells out a lot of info about these little suckers! You learn something new every day! Anyhoo, as a responsible retailer, make sure you sell replacement packs of these when you sell a smaller vibe that uses them. If your customer has to go out and buy them as hearing aid batteries, they run about $3 EACH that sometimes, when your gizmo has three of them in it, can be more than the toy itself. Selling the button batteries when you sell the product creates a nice, caring upsell you can offer to your customer and so be sure to ask your distributor who has them available.

I also entertain myself with the fact that the word “battery” in French is “une pile” – pronounced “peel” which to me sounds like “pill” which is exactly what these look like – but don’t swallow ‘em!

Let’s move up to the next size. Those pesky yet still used “N” batteries. I can see your eyes rolling now, my friends. I hate these batteries! They are smaller than a AAA battery in length but about the same circumference. Now here’s the rub: there are two different sizes of N batteries and they are not compatible with each other! Agh! There is a slight difference in the circumference and the nipple end (“What? Batteries have nipples?”), you know the positive end with the bump on it as opposed to the flat end, is a slightly different size between the two. I really wish manufacturers would dump this battery as they are tough to find replacements for. Sigh.

Next up are the common sizes of AA and AAA, both of which are readily available to the consumer. In my years of reviewing sex toys for XBIZ, only once did I come up with a vibrator that was powered by four AAAA batteries (so that would be four four A batteries – something a slight dyslexic would have a hard time figuring out). Good luck trying to buy AAAA batteries someplace… it would have been better to design a more consumer-friendly toy using readily available batteries to begin with.

Then come the larger and sometimes unwieldy C and D batteries and I don’t know about you, but I’d prefer to refer to C and D only when referring to bra sizes. They are big and clunky batteries to be slipping into toys and thank God they’ve pretty much gone by the wayside along with advertising for hard plastic, ivory-colored vibrators that were good for those “hard to reach places.” Keep them for your flashlights, folks.

Here’s a couple of more things about batteries. Make sure you have a battery tester available to test the batteries you have in your testing vibes at your store. When the batteries are weak in a vibrator, a vibrator will be weak, too, which can disappoint a customer looking for a good thrill. I’d say to check the batteries in the toys at least on a weekly basis and perhaps you’ll find some on a weakly basis (I couldn’t resist that one).

Also, remember that batteries make an excellent upsell item! Buy them in bulk (but please, not the ones that say “Kirkland” on them because we all know you hauled your sorry ass to Costco that week). Invest in Duracell or Energizers and offer them to your customer at the point of purchase and most of the time, they will buy them for a buck a piece just so they don’t have to go scrambling around at home to dig one out of the coffee can that won’t work anyway.

Besides which, if you offer them batteries in your store and it’s a long ride home, maybe they can try their gizmo even before they reach their destination.

I think I’ve been living in L.A. too long…

Next up! Vibrator care and feeding!

See ya on the next blog!

And now for JOTB (joke of the blog):

Once a little boy was walking with his mother and he came across a butterfly. He quickly stomped on the butterfly, killing it. His mother was appalled and yelled "That's it Matthew! No butter for you for a YEAR!" Matthew looked up at his Mom and replied "Whew! I'm glad it wasn't pussy willow!!"

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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Viewing Rights - The Constitutional Right to View Erotic Material

Friday, August 22, 2014
By Lawrence G. Walters, Esq.

What are your constitutional rights when it comes to viewing pornographic, violent or controversial material in your own home? This is a question we frequently address as First Amendment attorneys, and on which there is still some confusion in the minds of consumers.  Is there a right to view or possess pornography?  What about obscenity?  The answer to both of these questions, under the First Amendment to the United States Constitution and the Right of Privacy, is indisputably yes.

Stanley v. Georgia was a U.S. Supreme Court case in which the home of Robert Stanley, a Georgia resident, was searched by police. Stanley was previously convicted of bookmaking, and was suspected of conducting such nefarious activities again. Police had a warrant to search his home for bookmaking paraphernalia, and instead, found pornographic material in a drawer. Under Georgia law, it was a crime to possess obscene materials. Stanley was charged and convicted, and the conviction was upheld by the Supreme Court of Georgia.

That was not the end of the Stanley’s story, however. The U.S. Supreme Court overturned the conviction, and in the process made clear that all state laws criminalizing the mere possession of obscenity were invalid. In doing so, the Supreme Court noted that there is also a fundamental “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”  Regarding the notion that the State of Georgia could control the contents of an individual’s personal home library, the Court said this was “wholly inconsistent with the philosophy of the First Amendment.”

Out of Stanley comes the legal principle that individuals are free to possess and view pornography, even if that material is considered obscene, in their own homes. Stanley placed no specific restrictions on the content or subject matter of the materials. Individuals are free to possess extreme erotic material in their own homes, and may additionally view whatever fetish or subject area they wish.

This right is not absolute, however. The right to view pornography comes with one important limitation: the prohibition against even mere possession of underage material. In Osborne v. Ohio, the U.S. Supreme Court held that states’ prohibitions on the mere possession of child pornography are not inconsistent with the First Amendment and therefore, even private possession of child pornography is illegal. What constitutes possession, however, varies by state. Some states have court rulings or statutes saying that viewing without downloading constitutes possession, while other states require active downloading onto the hard drive to meet the possession threshold. Under federal law, “receipt” of child pornography via the internet or other interstate transmission is prohibited as well, thus triggering potential federal penalties for these acts.

Importantly for advertisers and operators of adult websites, the U.S. Supreme Court has held that it is also illegal to promote something as containing underage materials even if it actually includes only adult performers, pursuant to federal “pandering” laws.  Importantly for viewers, anything that is suggested to be underage material may actually contain such material, so it would therefore be best not to access such materials at all. Additionally, “morphed” or “photoshopped” images, containing the bodies of adults but the heads or faces of minors, have been the subject of recent and conflicting court decisions.  Nonetheless, consumers are warned to avoid this content as well, given the potential risks.           

Aside from the possession of underage materials, what is legal to view in your own home is a large category and includes exceedingly controversial content; such as images of violence, animal cruelty, and even “virtual” underage images, videos, cartoons or drawings. For violent images, there is interestingly no limit to the amount of simulated or real violence that can be viewed, as obscenity laws only apply to sexually-oriented materials. Although extremely controversial or violent materials may be legal to view, one must make his or her own personal decision whether to support or endorse content depicting self-harm or individuals being exploited. Another important point for viewers to note is that downloading a video depicting a real crime of violence may place you in the position of possessing relevant evidence, and subsequently destroying such evidence may, itself, be a crime.

Excepting the possession of underage materials, as noted above, individuals are free to view and possess a wide variety of violent and erotic content in their own homes, without fear of criminal prosecution.  The First Amendment needs sufficient “breathing room” to survive, and part of that is tolerating the private possession of material that might be illegal in other contexts, like obscenity.   However, with the widespread use of smart phones to create a diverse amount of both erotic and violent material, substantial questions remain regarding the legality of “producing” images that might be perfectly legal to possess. 

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The "Collaborative Era" and Legal Ramifications

Tuesday, July 22, 2014

Most individuals who have been working in the online adult industry marketplace during the past 10 years agree that making money and being successful has gotten more difficult and costly.  Many of those individuals have spent a lot of time attempting to place blame on the change in the marketplace and not enough time working on either changing their aging business models or creating new products and services.  On the other hand, many individuals have moved past older business models and looking for people to blame and have engineered new products, new business models and have continued to be successful in the online adult industry.

As part of reinventing and renovating themselves, more than ever, individuals and businesses have been collaborating and sharing resources in order to provide consumers with products and services that could not have been offered without the collaborative effort.  In fact, many of the collaborating parties used to consider each other competitors and would have never dreamed of working together.  These collaborative efforts have led to the creation of new products and services that share content, URL's, traffic, and advertising.

It is very important for collaborating parties to not neglect considering the legal ramifications of collaborations.  For example, many parties have been sharing content, whereby a content producer or content owner has been providing content to a website for purposes of marketing and/or inclusion in the website's paid subscription area.  In exchange for allowing (licensing) the content to the website operator, the website operator compensates the content producer or content owner via revenue share, pay per click etc.  In this example both parties need to consider the substantial legal issues that could arise including but not limited to, i) content licensing issues ii) payment issues, iii) content piracy, iv) and disputes between the parties.  In this instance (and all other types of collaborations), it is essential for the collaborating parties to reduce their agreement to a written contract.  The written contract will not only define the rights and obligations of the parties but it can (and should) also resolve how disputes shall be dealt with between the parties (if they ever arise).

The fact is, collaborative projects frequently terminate for numerous different reasons but the majority of collaborative disputes arise because one of the collaborative parties become disatisfied for financial reasons.  A solid written agreement between the parties will not only dictate how things will proceed during the good times but the written agreement will also control how things will proceed in the event of a dispute.  Being lazy or cheap is the wrong approach.  Stop with the verbal agreements and napkin notes that never get memorlized into a legally binding contract.  

One final point that I'd like to make is that my experience has taught me that family and close friends often make the worst collaboration partners and can result in the ugliest disputes.  Do not engage in a coloborative effort with family and close friends unless  you are prepared to lose that relationship.  Unless you are going to be prepared to lose the relationshp then walk away; money isn't everything.

It's very exciting to see how more people are realizing that the sharing of resources can often turn into an incredible product and I'm looking forward to the continued colloborative projects that result.  Just don't forget to make sure to cross all of your t's and dot all of your i's before proceeding.

Thanks for reading.                    

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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Censored by Google: What’s Next?

Wednesday, July 16, 2014

Google, a name most associated with the popular, gargantuan search engine, has been making its way into the headlines for a different and much more egregious reason: censorship across its platform of products.  The company recently made waves for prohibiting adult material on its advertising network, AdWords.  Now, it seems, Google has expanded its censorial policies and many are wondering just where the company will stop.

Xbiz.com founder and editor, Alec Helmy, called out the search giant for its hypocritical behavior; echoing the concerns of many in the adult industry.  In an open letter, Helmy wrote, “Your decision has left countless businesses in dismay, bewildered about why an ultra-progressive company that is so committed to ‘Freedom of Express’ would make such a decision.  These same companies also remain concerned about what the future may hold – specifically, whether you will also decide to place adult oriented websites at a decided disadvantage in organic search results.”

Through a spokesperson, Google claims its restrictive policies on adult advertisements are not new.  However, many familiar with Google and the adult industry do not agree.  Theo Sapoutzis, chairman and CEO of AVN Media Network, said he was surprised by the move: “I was one of the very first advertisers for AdWords back in 2002.  It’s something that’s been [untouched] for 12 years, so you don’t expect change is going to start happening.”

Tom Hymes, senior editor at AVN, agrees, noting that many in the adult industry have been abiding by Google’s rules for years and are now being abandoned by the search giant: “There are many people who say the biggest losers are the ones who play by the rules.  The winners are the huge properties with a lot of free content and frequent updates – the type of actions the Google algorithms really like.”  BaDoink CEO, Todd Gilder, added to the chorus with a scathing open letter to Google, noting: “When an organization as visionary, powerful and dominant as Google starts kowtowing to shrewd, faith-based special interest groups with federal lobbyists like Patrick A. Trueman at the helm, it’s a sad day for freedom and a sad day for IT.”

Now, Google is taking its censorship on advertisements a step further and directing business users to cover up “sexually explicit content” in the form of album covers.  The search giant has instructed music website Drowned in Sound (DiS) to pixelate, thereby censoring explicit cover art.  Sean Adams, founder of DiS said that “it seems crazy that they feel they can police our editorial.”  He also wondered just far Google would go with its censorship policies in the future.  Just recently, Google surprised many users when it removed several thousand links in an effort to comply with the EU’s “right to be forgotten” law.

Adams is certainly not alone in questioning the lengths and depths of the company’s censorship.  Many people, both in and out of the adult industry, are uncomfortable with Google’s recent decisions and wonder what will come next.  Attorney Michael Fattorosi stated, “This is another example of a mainstream company turning its back on the industry that has supported it.  The question now becomes: Will they block adult content from their search results?”

Google has also previously attempted to keep adult content out of other major products: developers are not permitted to share Google Glass apps with sexually explicit content and sexually explicit materials are banned from Chromecast.

Many are speculating that pressure from conservative groups caused Google’s policy changes regarding adult content.  Morality in Media, an ultra-conservative media activist group, claimed through a press release that Google’s policy changes came after a “productive meeting” between the two.  Google has refused to confirm the connection.  If accurate, this kowtowing to a family values group is a first for the search engine giant, which previously prided itself on commitment to free expression principles.

David Holmes, writing for Pando Daily, explains the greater problem of Google’s censorship and its impact beyond the adult industry.  Holmes writes:

You may despise pornography, but the specter of “family values” has often been used to attack anything that threatens traditional Christian morality, from homosexuality to books about wizards.  I doubt Google will ban Out Magazine or Harry Pottery anytime soon, but what about links to, say, a provocative work of art like Piss Christ?  Or ads for birth control?

As Holmes notes, the importance of tracking Google’s policy changes is not only for their impact on industries currently hurt by the new rules, but also their potential to censor information Google doesn’t agree with in the future.  Holmes colleague, Mark Ames, makes an important point: “Never in history has one corporation and one source had so much power over what we know and don’t know.”

Google’s power to filter the information received by the public is vast, and its ability censor disfavored speech, dangerous.  Most importantly, this is everyone’s issue, not the select few whom Google has decided to target today.

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