There is a silence within the industry, like a black hole in the middle of it. Offices are quiet. Production sets are quiet. Boards are quiet. Trade events are quiet. Not completely silent, but quiet. It’s a strange quiet for such a voluble age and industry, but it couldn’t be louder. This must happen in any time, whenever the shit hits the fan and the good times grind to a halt and the looming maw of a depression bares its fangs. It feels like the silence of despair and resignation, and the dread that comes from realizing you really are fuel for the matrix. It’s the silence people always project after they’ve lost their job, or fired someone, and the literal silence of a lot of people who simply are no longer there.

But the worst silence of all, the killer quiet, is the silence within, within an industry, a company, a family and especially within an individual. Not the silence of meditation and creative thought but the other clenched silence that can kills in the middle of a step.

It’s the end of a month and the beginning of another, the first month of the rest of our lives, and I really don’t have the time, energy or space to document the extent of the pain currently being felt in adult. (Besides, you know if you or your company is hurting, or at least you should!) But a warning is needed.

I know that people have been reaching out for help on a personal level, which is a really great thing and should be encouraged, but I think more probably needs to be done on a company and industry-wide level. Companies that have seen layoffs need to manage their staffs in the aftermath of those layoffs, and encourage open communication and, yes, even the cathartic sharing of feelings. Most companies in adult don't have real HR departments, and a lot are virtual with people scattered around the globe, but that doesn't mean that things can’t be done to assuage any fears and uncertainty within the staff. Surely, even adult managers know that a secure worker is a productive worker.

If you work for an employer who thinks human resources refers to a cattle call, or you are an independent contractor, a performer or freelance writer with no real work entity from which to get any solace in hard times, you should find a support group if you do not already have one. They could be anything as long as they are comprised of people who care about you and are willing to listen.

As an industry, we need to find a way to, first, admit what is going on, even if it means our dicks look a little smaller, and then the courage to act like a caring, cohesive industry. I don’t mean to be a prick about it, I really don’t, and I know this is a general complaint and that there are companies out there that are sacrificing in order to keep people employed, but a little more effort would go a very long way.

In addition to sponsoring support groups, or a job fair maybe, or even just encouraging the use of public social services, speaking up more often would in itself help immeasurably, even just to acknowledge that we, as a company, as an owner, as a peer and as an industry, care about the people who make up the business and are responsible for its profits and notoriety; something, anything, to help fill in the insufferable quiet of the times.

Photo: "Hunger to be Heard" - Jarra McGrath 2004

Dear Max Hardcore,

I just wanted to send a few thoughts your way as you begin a 46-month stint in federal prison for an obscenity conviction that should never have happened in the first place. First, I want to say I hope the sentence served is substantially shorter, if not reversed altogether.

I have interviewed you several times over the years, but we have never been close and I do not know you well. I may not be a great fan of your work, to say the least, but neither do I think that is relevant to anything. I don't want to speak about obscenity laws because I think we both agree that they are fatally arbitrary and, well, seriously fucked up. But I do want to talk briefly about the manner in which you have faced this whole ordeal.

Brother, you have taken it like a man.

I haven't seen or heard one self-pitying peep out of you since you were indicted, even at parties over the past few years, in one on one conversations, when you could easily have bemoaned your fate and the unfairness of it all, and declared yourself a martyr to the cause.

Instead, you talked about how you weren't giving up the fight and how the world hadn't seen the last of Max, and how you really do believe in the System and the freedoms we enjoy and so often take for granted. That as the Man was working overtime to take away yours.

It was impressive, but I have been impressed before, particularly when you were one of the very first of the "video" crowd to attend Internext shows, years ago, when 98% of the producers still thought the Internet was for chumps.

You were always there, way ahead of most of the others, visible, asking questions, making deals, and palpably eager to learn everything you could.

I was there when an online guy tried to coax you into a fight at the pool in Hollywood, Florida, because, as I recall, he was offended by the content you made and felt he needed to make a statement. You didn't bite or back down, as I recall, and the confrontation petered out.

And I have seen you pilloried on adult chat boards by a lot of people in the industry, with comments along the lines of, "You had it coming," or, "That's the way it goes," or, "You play with fire, you get burned." You know, the sort of comments one would expect from people who share similar risks. (Excuse me while I puke.)

I also have heard the quieter asides, "I don't give a shit," or, "He got what he deserved," or the slightly more generalized, "Fuck him." There have been a number of those lately, but then that sort of attention is nothing new to you, is it? As the king lightening rod in an industry renowned for its headline grabbing, boundary-pushing egoists, your skin got thick a long time ago, didn't it?

So I just want to say that all this has been noted. You have thus far acquitted yourself quite honorably. I also want you to know that you will not recede into oblivion. If I am allowed and able, I promise to visit you in jail, to see how you are doing and to continue covering your story. I'm sure I will not be the only one.

On a last note, not that it was your choice, but you probably picked the best possible time to take to the sidelines. This is going to be one brutal recession. I know, it's not much of a consolation, but it's something.

Take it easy, Max. See you soon,

Tom

I haven't posted up anything since late last year. Okay, it's only been a month, but it feels like 2009's been here for a while, like it's already kind of dragging. I mean, I've already got 2009 fatigue; what's that all about? And everything's moving too fast and at the same time nothing is moving at all. People seem paralyzed at warp speed. Time is blurring in stasis. Feh...

And then there was the Vegas interlude. I went, of course, as I have for 10 years, but this time I did not go to AEE, which was odd. The annual ritual, as deadly boring as it has become, still holds just enough showbiz appeal to keep me interested. But the truth is I had no work reason to go, so I cut my trip short and only went to Internext, where I did have work reasons to be, but even then not for the whole time.

In a sense, I felt like I was passing through.

A lot of former employees are feeling similar sensations these days. The extent of personnel dislocation (a term I would never use in polite company) in the industry is not officially tracked, of course; there are the usual signs to go by, like who has fallen off the show or board circuit, but these signals can be deceiving. Lots of people reach a stage and simply fall out of public sight, but still toil away, in touch with whomever they need to be. Others really are gone.

Same thing with companies. One day they are pitching their products and services, and the next they vanish. Sometimes, employees find out after the fact. That's been happening more often than anyone would care to mention, and there is something quite unsettling about the practice.

But then, in times like these, when an almost visceral panic takes hold within even the well-positioned companies, civilized behavior (i.e. professionalism) is often discarded. I wonder whether some of these employers are truly aware of what they are doing, how their actions affect people, and how or whether they intend to explain their behavior once the "crisis" has passed. In an ADD-addled industry such as ours, however, I suppose such questions are moot.

Mind you, it's not the fact that hard choices have to made; it's how they are made. Too many believe there is no distinction.

Indeed, as we speak there is a well-known company that cannot decide whether to fire its staff or its 1099s - or both or neither or some or all - and is going back and forth like a yo-yo, keeping everyone guessing and subject to all the attendant mood swings. That surprise and indecision are the order of the day must be excruciatingly palpable to those on the inside; from a distance, it is simply appalling.

There’s also something very sad about watching entrenched industry insiders fretting about whether or not they’ll have a job tomorrow. Some of them won’t. These people will have to find new jobs in adult, or accept they have just been passing through.

I feel their pain. I'm hurting, too. But neither am I panicked. I can't afford to be, and besides, exciting plans are afoot. I've decided that I need to stick around and that there is, now more than ever, interesting work to be done and more than a little money to be made.

Ron Cadwell of CCBill posted up the long-anticipated news late last night.

"Effective Immediately MasterCard is going to enforce rule 5.10.1

"Pre-Checked Cross sells are now officially DEAD!!!!!!!!!!!
Fines will be 50k per week per account
30 days for banks to cancel all accounts or termination of their right to process

"This rule will not affect IPSP accounts since we are viewed as a single merchant in MasterCard's eyes.

"WOW!!!!!!!!!!! The day before Christmas this is really PRICELESS"

He can say that again. M/C, and soon Visa, have been alerted to a very serious problem which they will now attempt to correct. The new rule reads:

5.10.1 Sale or Exchange of Information
A Merchant must not sell, purchase, provide, exchange or in any manner disclose Card account number, Transaction, or personal information of or about a Cardholder to anyone other than its Acquirer, to the Corporation, or in response to a valid government demand. This prohibition applies to Card imprints, TIDs, carbon copies, mailing lists, tapes, database files, and all other media created or obtained as a result of a Transaction.

In the middle of the aforementioned thread, Cadwell responds to a poster who theorizes that it was pressure from the DoJ that prompted this crackdown with a resounding "Bingo!" He obviously knows much more than he explained in his opening post, but then again he always does.

As mentioned, this move has been brewing for awhile and many people knew it was coming. What's interesting is it's timing, almost simultaneous with the release of the revised 2257 regulations. Even a non-conspiracy theorist might discern a coordinated action, but who knows. The rule changes were announced in October; that they are effective immediately means that a 60-day rule was probably in effect, and that banks and processors have been working overtime to get themselves and their clients into compliance, or get rid of them.

I know of one owner of a large program who was recently rejected (and chided) by one of the prominent IPSPs because he was engaging in practices explicitly banned by the new rule. He was angry about it, too; felt it was unfair and that he should be able to manage his own billing affairs as he saw fit if it made his operation run more efficiently, and that others corrupt practices should not prevent him from doing just that. MasterCard/Visa do not agree.

There is a lot to digest here, but it is clear to everyone that this is a long-overdue move to correct some very, very bad billing practices that have proliferated over the past few years. In continuing to allow the practice of non pre- or pre-checked cross sales by ISPSs, which the card companies have always regulated with a heavy hand, we are seeing what we have seen before, a strong move to consolidate authority in the billing companies considered the most responsible and responsive with respect to ever-creative corrupt practices.

In post #25, Cadwell even comments, "Notices and fines have already gone out to the banks and they are in the millions." One presumes the fines are in the millions, not the banks! ;-)

Looks like Spring cleaning has arrived during Winter this year. Merry Christmas!

As most of you have probably heard, the DoJ is publishing the "new" 2257 regulations in the Federal Register today, which means they will go into effect in ninety days. I am sure industry attorneys will weigh in ad nauseam with interpretations of what the regs say, and this time around we can only hope and pray, and then pray some more, that they find common ground on which to agree (I jest), but in the meantime, the bullets below (courtesy of DoJ!) will give you an idea of the changes Justice has agreed to make.

• Consolidated the publication of the final versions of the two proposed rules into one final rule;
• Ensured that the regulatory requirements applicable to depictions of actualsexually explicit conduct consisting of lascivious exhibition apply starting on the date of availability of the statutorily provided safe harbor;
• Permitted the use of third-party custodians of records;
• Permitted records to be maintained digitally;
• Clarified the exemption from the record-keeping requirements for those engaged in distribution;
• Clarified that, for purposes of the requirement that every page of a webpage contain the disclosure statement, a hyperlink or “mouseover” is permitted;
• Eliminated the requirement that statements on the location of records contain a date of production (or any other date), although added a requirement that primary producers create a record of the date of production;
• Clarified the application of the requirements regarding location of the statement to DVDs; and
• Eliminated the detailed information required by the certification regime, and replaced it with a significantly simpler certification.

Personally, I think the ability to use off-site third party entities to keep 2257 records is pretty damn huge, and should save a lot of the smaller people a lot of time, money and aggravation in the long run. I think it is safe to say that the DoJ just helped create a cottage industry within adult.

Way to go, coppers!

One area I will need clarification on has to do with adult sites that allow user-generated content (i.e. Tubes, dating site, etc.). My reading tells me that while some of them are exempt from 2257 requirements, the uploading producer of the content is not.

"...Businesses such as dating services that in fact do not produce depictions of sexually explicit conduct, are not the entities that are responsible for record-keeping and disclosure statements. Those responsibilities in those circumstances would fall upon the individuals who post graphic content on the site."

DoJ also says that adult Tube sites "... may be exempt from keeping records, since the original individual producer who posts a depiction on that site is required to affix a disclosure notice to each page of the sexually explicit depiction..."

Seems pretty clear, but what I don't see is what happens to the site if the uploader does not provide 2257 documentation in the form of a custodian of record name and address and the site still allows the content to be uploaded. I would presume that they then lose their safe harbor.

Also, if I'm reading this provision correctly, what will its enforcement do to the illegal Tube model that continues to bedevil the industry? Will "civilians" actually include such documentation? Doubtful. And what about uploaders of illegal content? Will they provide 2257 along with the contraband? Doubtful as well.

Is DoJ unwittingly handing the industry a solution to the illegal tube dilemma? Or is it trying to unconstitutionally stifle yet another form of speech, but this time that of regular citizens?

I'm just asking.

Mary Beth Buchanan is the gift that wants to keep giving... and giving... and giving... and giving. The lady doesn't ever want to go home! And why should she? A tough female U.S. Attorney who isn't afraid to clean up the sex-stained streets of Gotham has a certain appeal, and a bright future. It's a gritty TV crime drama waiting to happen, a writer's wet dream. Gal cop probes the dark corners of the sex trade, shines her high beams on the filth she uncovers and faces down the bad guys!

And all of it courtesy of the adult entertainment industry, thank you very much.

I have nothing against tough prosecutors — Lord knows we need someone to keep an eye on Wall Street (please) — but Buchanan, who was appointed U.S. Attorney in Pittsburgh by George W. Bush in September 2001, has made a very special name for herself above and beyond the call of duty, especially in her assault on free speech and adult entertainment in particular.

It is Buchanan who is personally responsible for bringing obscenity charges against Extreme Associates in 2003, and also that same year against Tommy Chong for selling bongs online, cases for which she was rewarded by then-Attorney General John Ashcroft with high profile positions such as Director of the Executive Office for U.S. Attorneys. Her involvement in the now infamous firings of U.S. Attorneys by Ashcroft's predecessor, Alberto Gonzales, occurred while she was in that position.

Industry attorneys who know her say she is not a true believer, but a reasonable person who really cares about protecting women and children, but her actions and zeal over the years belie those reports. Buchanan has in fact distinguished herself as a partisan employee who has embraced her mission to deny adults the breadth of constitutionally-protected speech with a missionary's dedication.

She's also the one who went after Karen Fletcher, who wrote disturbing stories on her site that involved depictions of child sexual abuse. As vile as those stories may have been, did that clearly disturbed woman deserve to be prosecuted to the full extent of the law by this other disturbed woman?

The worst part is that she wants to stay on because her work isn't finished. Be afraid, be very afraid. ;-)

Last week, the Free Speech Coalition organized a day-long summit that focused on the issue of digital piracy. It was a more significant occasion than it sounds. In convincing a day's worth of motion picture, music and television industry execs to participate in a public discussion with members of the adult entertainment industry, FSC's fabulous Diane Duke, with the help of some connected law firms, engineered quite the coup. The exceptional program she put together culminated in a lively discussion between Vivid's Steve Hirsch and AEBN's Scott Coffman, which I was privileged to moderate. So a lot of ground was covered that day.

For many in attendance, though, much of what was discussed was more than familiar, and some expressed frustration that more new ground, i.e. solutions, was not forthcoming. But it never was to be; this first go-round was an initial conversation between previously estranged members of the same digital family, an essential step but too soon for the whispering of sweet secrets; if, that is, any exist.

Truth be told, it was all too clear that our big Hollywood brothers have no silver bullet (or sword) in their possession with which to smite pirates, and in fact continue to ask of themselves many of the same questions we have asked of ourselves these several years. But more saliently, it also came clear that the industries, as much as they differ, also tend to frame the questions similarly, and in doing so reveal a shared view of the desired uses of copyright and the business models that flow from them that are increasingly at odds with the myriad ways that people use and enjoy digital content.

It was in this context that the one comment during the day that really caught my ear happened to be a passing remark about the incoming Obama Administration and the fact that "we" could not expect any relief in the area of strengthening copyright laws to better protect against digital piracy. The reason offered was the presence of Lawrence Lessig on the transition team.

The comment interacted with a sense of unease I had been feeling that we who had convened that day were coming at the issue of piracy and copyright from an incomplete and ultimately ineffective perspective. My sense of unease was heightened by the fact that while there was such a high level of experience, intelligence and mainstream corporate influence in the room, an imperative side of the copyright argument was barely being acknowledged.

A few days later, I bought Lessig's latest book, "Remix: Making Art and Commerce Thrive in the Hybrid Economy," and read it over the holiday weekend. Lessig is, of course, a professor at Stanford Law School and a well-known advocate for easing legal restrictions on copyright. Remix is the third in a trilogy of books he has written on copyright and content in the digital age. If he has Obama's ear and the attorneys for Hollywood et al see him as their (and our?) ideological enemy, I wanted to know exactly what is on his mind.

What's on his mind is far more that I can convey in this or a dozen columns, but I will try in the months to come to insert his ideas into the discussion where relevant, not just for argument's sake but because they need to be incorporated into our everyday assumptions. They need to become a central part of our continuing conversation.

In my column in January's XBIZ World, I'm going to talk briefly about two of Lessig's core ideas - Read Only (RO) and Read/Write (RW) cultures and the three core economies; commercial, shared and hybrid - and their relevance to the adult entertainment industry.

If the Obama transition team is boning up on this stuff, so shouldn't we?

*UPDATE*

There has been some transition activity related to copyright, with Lessig right in the middle, of course.

So, in the face of floating embers and rolling blackouts that actually darkened our Valley apartment, Saturday I dragged my sorry butt to downtown Los Angeles to join a massive gathering of Prop 8 opponents gathered at City Hall for speeches before embarking on an energetic if somewhat ragtag march through the streets.

Wow, what a day. LAPD says the crowd was about 15,000 strong, but I think it was much larger and closer to the 40,000 expected.

All I know is that more and more people kept showing up and when the speeches were done and it was time to march, it took about 15-20 minutes for the crowd to loosen up in order for people to have room to even take a step. I learned that large crowds are like aircraft carriers in their inability to maneuver quickly and adroitly.

For all the crush, however, and despite the emotional weight of the issue and moment, it was a perfectly well-behaved gathering of Angelenos of every age, ethnicity and sexual orientation, all of whom exuded a very positive feeling throughout the day. Many of the signs were witty, many of the chants were funny and creative, and I think that anyone who showed up had to realize that the breadth and depth of the solidarity exhibited that day can only be interpreted as a portent of positive things to come.

In other words, I think anyone who showed up feeling isolated and forlorn had to come away with the belief that the future belongs to citizens whose natural bent is to accept, embrace and include rather than judge, tolerate and exclude.

I don't really like explaining what to me is a no-brainer opposition to something as pathetic as 8 but perhaps it makes sense here. As a straight married man, my feelings on the subject are simple. I cannot possibly categorically deny to others what I have for myself, but even more important, in accepting others' commitments to one another I believe that my own marriage is not weakened but rather strengthened. Love binds us, after all.

As good as it felt to be there among so many strangers of like mind, the day brought me a special surprise. Shortly after arriving, I turned in search of a better shooting angle and there standing before me flashing a broad beautiful smile was our dear friend Aly Drummond, ex-Cruise Director for Python and a beloved member of the industry for several years.

We'd been out of touch and so spent the day marching together and commiserating. What a joy. As one of the more thoughtful members of the business, Aly had always been one of my favorite characters, a real live human being in a sea of poseurs. We'd served together on the ASACP advisory council for a few years and also worked together at AVN, though not for very long. Now that she's been away for a few years, it was interesting to hear her perspective on her time in the industry. Distance is a great equalizer, and most of us would benefit from a similar adjustment in perspective, whether we plan on staying in the game or not.

But make no mistake, should you so choose there is life beyond porn. For her part, Aly has had great adventures over the past two years and her enviable ability to live an interesting life is very much in play. Healthy and thus resistant to any return to the trenches of adult, she is working and has personal projects in development, and I suspect that those among us who miss her engaging wit may very well be able to benefit from it again in one form or another.

We can only hope.

Talk about good timing.

The U.S. Supreme Court yesterday heard oral arguments in the Fox TV v. FCC indecency case, and all but simultaneously Microsoft has been awarded a patent for an automatic censoring filter.

According to the article linked to above, "The invention is intended to act as a filter for live broadcasts where it is impracticable to delete or make inaudible certain undesired words or phrases."

Following the oral arguments, Microsoft is probably feeling pretty good about having the patent, but a decision one way or the other is far from certain.

I'm reading the transcript now and will comment on it later. It's interesting, of course, but also relevant to this industry, not least because the FCC's authority to regulate the presumably "patently offensive" F-word and S-words across broadcast mediums derives from their association with sexual or excretory acts.

I wonder if many Californians will vote no on 8 but yes for McCain. I'd like to see those numbers afterward. Seems like it would be an odd thing to do, but I have a funny feeling more than a few people will do it and some of them will come from our industry.

I suspect that those who do "split" their vote will have done so because they still hew to the fantasy that Republicans protect free markets more diligently than Democrats. But they need to get over that hoary canard, which was finally shot dead about a month ago.

They also need to realize that even if Obama wanted to dismantle the free market system, which he doesn't, it would be an impossible task. If anything, he'll put some refs back on the field, which is what we really need. If he tries to go much further than that, I suspect even a filibuster-proof Democratic Congress will bite his hand hard. (Unless they're the ones that instigate it!)

As far as taxes go, I've been alive long enough to know better than to take the promise of raising or lowering tax rates as anything but campaign sloganeering. Candidates always promise one or the other but often have to eat their words. Basically, I think voting for or against a presidential candidate because of taxes is myopic and self-serving (in a bad way.)

My hesitant suggestion is that socially progressive Republicans take another look toward the future and keep their minds fixated on the role the courts will play in the protection of our civil liberties. It is in that arena that our vulnerable rights will be brought to ruin faster than any outside threat could possibly accomplish.

*UPDATE*

Looks like I may have had it backwards and a lot of people, including perhaps a majority of African-Americans, voted yes on 8 and yes on Obama. I voted no on 8 and yes on Obama, which I feel was more consistent and far less ironic.

At any rate, they still haven't called it, even though the latest numbers, just pulled of the County Registrar website, are distressingly close.

SAME-SEX INITIATIVE
YES 1,317,125 - 50.4%
NO 1,296,319 - 49.6%

It's over. Intolerance prevailed once again. One of the last great battles for universal civil rights goes on. I am deeply ashamed for California, Florida and Arizona, but especially California! We should be leading the nation in this great struggle, not pandering to those who would deny to others what they have always had for themselves.

Here's an interactive map that shows the geographic breakdown of the vote.