Stephen’s Corner: Pushing Policy

Stephen Yagielowicz

At XBIZ 360 in Hollywood I had the opportunity to speak on “The Next Web” where I noted that media policy rather than technology would have the most impact on the adult Internet over the near- to mid-term.

For evidence, one only need look to the FCC as it decides whether or not to rule the Internet the same way it controls the airwaves — or how Net Neutrality really affects consumers and producers.

Talent is increasingly taking production and distribution into its own hands, such as through live cams, personal websites and social media; but due to the often low hourly earning potential, we see a decline in U.S.-based performers versus an upswell in overseas talent.

These issues are increasingly attracting my attention, and so I appreciated the opportunity to share my industry-positive views at the “Dirty Sexy Policy” conference, held in February at the University of California, Santa Barbara. In addition to keynotes, Dirty Sexy Policy presented panels exploring the regulation of obscenity and indecency, the structural regulation of broadband technology and the broader stakes of media policy.

I spoke on the “Content and Conduits” panel which discussed the confluence of age-inappropriate content and online media policy today and was provided a list of questions, with the following being a few notes on selected topics:

How are the stakes different for consumers, creative labor and content providers and distributors?

The consumer aspect has two main concerns: choice and safety; with policy defining the acceptable parameters of this choice.

Through this lens, consider that talent is increasingly taking production and distribution into its own hands, such as through live cams, personal websites and social media; but due to the often low hourly earning potential, we see a decline in U.S.-based performers versus an upswell in overseas talent. This isn’t just an issue of performers but of behind-the-scenes support staff, such as website coders and graphic artists.

The global nature of this decentralized pool makes effective policies hard to craft.

Finally, the real world effects of policy decisions on the individual lives of creative labor, content providers and distributors, is nowhere more in evidence than in the scene unfolding in porn’s “ground zero,” Southern California, where a mandate for condoms in porn is fueling growing calls for the industry to move elsewhere, which directly impacts the lives of countless workers and disrupts a significant economic base for the region.

It is a microcosm of how “feel good” policy making, no matter how well intended, cause unintended consequences for a wide range of stakeholders.

How have digital distribution technologies affected the regulation of the adult industry, and other industries like Hollywood and independent cinema?

The rise of content piracy has had a devastating impact on revenue, with regulatory frameworks such as the Digital Millennium Copyright Act (DMCA) seeking to cope with this situation; but protection is best enjoyed by those having the wherewithal to pursue copyright infringers who are often without assets and operating from offshore locations in the developing world. As a result of manipulation of safe harbor provisions of the DMCA by fraudulent operators, this weapon is rendered impotent for combating content piracy.

Digital distribution technologies also impact regulation of the adult industry on a private scale via more stringent card association (MasterCard/Visa) regulations that hold the industry to a higher standard than it does its mainstream counterparts, through unique fees and lower chargeback thresholds. Other companies, such as Apple, restrict access by adult firms to the captive iTunes app distribution system used by its customers, imposing corporate censorship (I mean “policies”) on an otherwise free market.

Furthermore, we see digital technology visually obfuscating condoms, rendering moot much of the debate pitting those opposing the use of condoms on an aesthetic and market demand basis versus those that campaign for performer health and establishment of positive “role model” images in sexual depictions.

The upshot is that technology influences policy but policy also influences technology.

What is the role of Internet service providers [ISPs] and technology companies in policing content?

I support the argument put forth by many ISPs that they are merely conduits for the data they pass along, and should be no more responsible for its content than the phone company is for the private discussions held between callers.

Would you like the phone company telling you that you can have a phone and call anyone you want, but you are prohibited from discussing certain topics it simply doesn’t approve of — such as abortion or gay marriage — or an automobile manufacturer saying that you can’t drive your new car through Ohio? Apple once again comes to mind.

This makes it an issue of who draws the line, where and why. Having said this, those companies that can provide the tools that enable consumers to voluntarily police their own content choices (an easily toggled “safe search” mode on a search engine comes to mind); or to identify content as age-inappropriate — such as the Restricted To Adults (RTA) meta labeling code provided by the Association of Sites Advocating Child Protection (ASACP), make a positive difference — as does a digital media company’s adherence to ASACP offers such as its universal Code of Ethics and market segment specific Best Practices.

Thus policy, correctly crafted, is not about restriction, but about empowerment.

How does the concept of localism, long central to broadcasting, hold up in today’s global media landscape?

While the tenets of localism may be laudable, they are far more applicable to previous generations of communications technologies.

From an adult content standpoint, beyond questionably serving the public interest, localism impacts the argument over “community standards” (see Miller vs. California), which was easy to make pre-Internet — but in our basically borderless online ecosystem, the world became the community — with all of its fundamental differences clashing with the utopian ubiquity of access to unfettered ideas that the Internet promised.

It is America’s great experiment of the melting pot taken to the extreme, where the only logical community standard is universal inclusivity.

Not everyone is so broad minded, however, so companies must manage distribution in an arena where one audience imposes no rules — while another is under Sharia law.

How might we advocate for better media coverage related to critical policy matters about obscenity, indecency, and infrastructure?

As for the mechanics of “how,” I’m not certain. As to “why,” the motivation is driven by the need to balance the typically salacious nature of media coverage with some reality.

“Sex sells” — and while it may not be selling too well for the porn industry today, it still sells newspapers — as well as viewership on every other type of media; leading to a perhaps unconscious but nonetheless tangible trend of ginning up headlines as the outlets clutch at any straw bearing the slightest sexual connotation, simply to drum up ratings. This inevitably leads to playing fast and loose with the facts — facts we must restore.

What current initiatives create models for a more sustainable media policy?

Having a sustainable media policy must be predicated on industrial self-regulation, where the benefits of playing by the rules will outweigh any drawbacks.

I’ll once again cite the example of the RTA label developed and provided by ASACP in response to U.S. Congressional demands that the adult industry “do something” about keeping children away from age-inappropriate material.

RTA works hand in hand with existing filtering software by explicitly notifying these filters to block the site in question — and is the result of responsible publishers providing parents the tools they need to protect their children.

By crafting policies that encourage self-regulation and support a responsible domestic adult entertainment industry, some level of control may be exerted for the public good.

Think of the difference between gently cupping your hands together and being able to scoop up a small amount of water — and of squeezing so tightly it pours from your grasp. The gentle approach will give you what you need — while a harsh approach will only leave you frustrated and thirsty.

It’s all a matter of being practical rather than demanding.

Think of a day at the beach, where after a swim you want to lay on your blanket, but it is now covered with sand. No problem: a quick snap of the wrist will solve the situation — but make sure of your position, or that sand will blow back in your face, blinding you; and if you’re too rough, you might even rip your towel, rendering it useless.

If you’re careful, however, everything will work out and the sun will shine upon you.

Stephen Yagielowicz is XBIZ’s senior technology editor.