The Empire Strikes Back: 1

J. D. Obenberger
On Thursday, July 27, 2006, President Bush signed House Resolution 4472 into law, an enactment with profound effects for adult webmasters.

When does HR 4472 Take Effect?
Bills passed by both houses of Congress become effective upon signing by the President in the absence of provisions in the Bill that otherwise provide. The definition of those who produce sexually explicit content now includes the class of persons who have been called "secondary producers" in the Regulations. That change seems to take effect immediately. (It is not clear what the effect of Denver Judge Milller's injunction in favor of FSC members may have on enforceability of this provision on FSC members, but as to the other webmasters who are non-FSC members, it seems plainly enforceable now. It constitutionality is a matter that will be challenged as it is enforced, and perhaps before then.)

Section 502 (b) of the Bill provides that the provisions do not apply to the newly regulated class of images depicting the lascivious exhibition of the genitals or pubic area, if they were produced in whole or in part before the effective date of the statute, unless they were previously regulated (e.g. graphic depictions of masturbation or sexual intercourse that do include a lascivious exhibition of a penis and/or vagina.) Webmasters should create strict protocols 1) to assure that pre-4472 images are identifiable as exempt (or just taken down) and 2) to assure that images produced after the effective date of HR 4472 are included in Section 2257 record keeping and are embraced within the required Disclosure Statement.

Additionally, the provisions concerning simulation of sexual conduct (2257A) do not become effective until ninety days after final rules implementing them are promulgated by DOJ according to Section 503 (i) (3) of the Bill. Thus, those provisions are not currently in effect.

Why Did Congress Enact the Section 2257 Amendments?
Fourteen years ago, In 1992, the United States Department of Justice promulgated regulations to implement Section 2257 which included a class of persons called "secondary producers" who used explicit images but who had nothing to do with their creation. They were charged with the duty to maintain the same records as though they were a photographer, with the obligation to provide a disclosure statement, and the duty to make the records available for inspection. Certain constitutional objections to the statute and the regulation were rejected by the United States Court of Appeals for the District of Columbia Circuit in ALA v. Reno in 1995 and the regulations went into effect shortly afterwards. Eight years ago in Denver, the United States Court of Appeals for the Tenth Circuit, in Sundance Associates v. Reno, determined that the "secondary producer" obligations imposed by DOJ's regulations went further than Congress had authorized and that the record-keeping obligation had been imposed by Congress only on those with a close connection to the creation of the content. This ruling was never followed by any other court, and as a result, it was only the certain law in the mountain states of the Tenth Circuit. As a result of plenty of wishful (or hopeful) thinking, many – or at least some – producers in the first generation of adult Internet commerce refused to provide Section 2257 records to webmasters, the webmasters often –- or at least sometimes – acquired rights to the content anyway, and some tried to have it both ways by providing a disclosure statement referring to the original producer, as was permitted under the regulations, but not maintaining records as required by the regulations. Many webmasters with acquired content thought they were fully in compliance with the law and they simply did not know that the regulations required them to maintain the records themselves. When the Free Speech Coalition responded to the Attorney General's newly amended regulations in 2005 with a lawsuit in the Tenth Circuit challenging the secondary producer obligations - a claim it was bound to win in the Tenth Circuit – Congress reacted by introducing at least three bills making it clear that Congress presently intended to impose the record-keeping obligation on secondary producers. These bills were introduced both before and after Judge Miller in Denver issued his December, 2005 ruling which preliminarily enjoined enforcement of the secondary producer requirements as a matter of authority rather than constitutionality, following the higher court decision in Sundance. (The Free Speech Coalition had also challenged the constitutionality of the entire scheme, including its effects on the creating photographers and videographers.

With one exception relating to maintaining a copy of the depiction of streaming content, Judge Miller shot down every constitutional argument he reached concerning the scheme imposed by Section 2257 and the implementing regulations. He never reached the constitutional arguments concerning secondary producers because he followed the authority holding of Sundance – and it's debatable whether the constitutional arguments of secondary producers are different from that of primary producers in a constitutionally significant degree.

Because Congress had the power to make its designation of authority concerning secondary producers to DOJ clear, Congress could and did fix the problem affecting enforceability of the secondary producer obligations. In fact, Congressional attention to Section 2257 was ripe because, through an oversight in the Protect Act enacted in Spring 2003, the definitions of sexually explicit conduct contained in Section 2256 were no longer in synch with Section 2257 and needed to be adjusted. Congress took advantage of that need for its attention, and in my view, directly responded to the Free Speech Coalition's lawsuit, by crafting a legislative fix for the situation in the Tenth Circuit that cleared both houses of Congress and which became law on July 27, 2006.

The obligations imposed on Secondary Producers have been defended by DOJ because they deny a market to child pornography and create duplicate records in case the primary producer disappears, dies, or blows away.

The inclusion of the previously exempt "lascivious display" images was defended by proponents as "plugging a loophole" in the Section 2257 system designed to abate child pornography. To others of us, it just looks like a vindictive neoconservative punch in the nose of the adult industry, responding to the litigation in Denver. The bills proposing such a result seem to have been introduced after suit was filed there and the cause and effect seems a fair inference from the events.

What is the Practical Effect of the Changes in Section 2257?
The term "secondary producer" never existed in Section 2257 and is not found in the recently amended statute, either. Instead, Congress has included the persons who insert images depicting actual, explicit sex and those who digitize them with a commercial interest into the expanded definition of the persons who "produce" such conduct. Congress has clearly legislated that secondary producers are, indeed, producers. The obligations of the law affect them as much as the guy behind the lens, assuming the constitutionality of the Statute. It is now clear that licensing/assignee webmasters must maintain the records and content, publish the notice, categorize the records, and make them available for inspection. The essential difference between the categories of producers remains as laid out in the regulations: The noncreative webmaster acquiring content may accept as authentic those records tendered by the primary producer and must categorize them and maintain them for inspection, make them available for that purpose, and publish a disclosure statement, listing the primary producer or himself (or herself), at his option. He or she must also maintain a record of the name and address of the primary producer.

Stealing covered content has always been a violation of the copyright laws – but now it's a crime to use covered content without the records.

In part two, we'll look at what webmasters should do to comply with the amendments.

Copyright 2006 J. D. Obenberger and Associates. All rights reserved.

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