At the January InterNext, noted Web attorney Larry Walters provided a summary of important issues for Webmasters to consider. Here are some further steps that all adult Webmasters should take to protect themselves, and to prosper, in this series conclusion:
11. Only Use Licensed Content. Do not steal images from other Websites or newsgroups. If you did not create it, or buy it, it belongs to someone else. Common notions of what is in the “public domain” are generally wrong.
12. Pay Your Taxes, Keep Your Employees Happy and Over-comply with Government Regulations. Adult businesses are under a microscope. If the government is looking for a way to get you, it might find a way through technical non-compliance with a host of regulations or laws. As an adult webmaster, you cannot get away with what other businesses get away with. You will be held to a higher standard. Often clients come to the attention of law enforcement through complaints by ex-employees, customers or models who feel cheated. Maintain a high degree of personal integrity and business ethics. This may avoid substantial problems in the future.
13. Create a Brand Name. Picking a name that is capable of registration as a trademark or service mark is important to the success of your business. Creating an online identity through a recognizable brand name is half the battle to long term success. Names like “hotblondbabes.com” are generally considered too descriptive for trademark registration. However, arbitrary, made-up names like “Yahoo!” or “Exxon” or “Polaroid,” which mean nothing in the English language, have the best chance of being registered as a trademark or service mark. Performing a trademark search prior to selecting your online brand name is also a good idea. Some legal advice on this issue early on can pay dividends into the future.
14. Watch Your Links. Precedent has been established imposing vicarious liability on Webmasters for content contained on sites to which they link. Are you comfortable with the content found on all sites linked to your pages? This is especially important if you are in any sort of financial relationship, or obtain any sort of benefit for reciprocal linking.
15. Take a Stand against Child Pornography. The enemies of the adult industry always attempt to mix concepts of protected adult materials with illegal child pornography. We, as an industry, must at every turn attempt to reestablish that all important line of demarcation. Take an outspoken stand against any involvement by children with adult materials, either as participants or as audience. Link to organizations such as www.ASACP.org (Adult Sites Against Child Pornography).
16. Become Politically Active. Join the industry’s trade organization such as the Free Speech Coalition, found at www.FreeSpeechCoalition.com, and the Internet Freedom Association, Inc. found at www.OnlineFreedom.com. These organizations are looking out for the future of the industry, and are fighting for your rights on various fronts. The Internet Freedom Association is in the formative stages, and can use help in building a strong webmaster trade association looking out for the unique interests of the adult Internet industry. The Free Speech Coalition has litigated a number of important cases for the adult industry, and has been running for Free Speech rights for decade. The positions that these organizations take will affect the future of your industry. Get involved. Become a member, become a director, contribute and be active in your industry. It’s not a bad way to meet people in the industry either.
17. Become an Expert on Obscenity Laws. Every adult webmaster should be able to recite the Miller test for obscenity from memory. Obviously you will need to obtain some advice from a competent First Amendment attorney to understand the intricacies of this law, and how it has been interpreted throughout the years by the courts.
However, every adult webmaster should know the basics, along with some of the potential defenses. Obscenity prosecutions are coming, and the first wave has already begun. Two cases were filed by the Department of Justice in the last 6 months, based on Website content, and one individual has already been sentenced on a federal felony for mailing obscene materials available on her Website. Conventional wisdom dictates that this is just the very beginning of what will likely happen given Attorney General John Ashcroft’s stated intent to initiate obscenity prosecutions on a wide-scale against Internet content. You should learn the tricks of the trade when it comes to identifying potentially obscene material, and reducing your risks for being targeted by the government. Adult Webmasters should learn to develop a “smell test” to determine what might be considered obscene, based on prevailing community standards.
18. Secure Evidence of Your Community’s Standards. Does your local community allow the sale of hard core adult materials? Is there an adult bookstore or video store in your neighborhood? If you are charged six months from now for content you are selling today, how will you be able to prove what the community standards were when you were selling the material? Some courts allow introduction of “comparable” materials in the defense of an obscenity prosecution. It may benefit you to have somebody, who would make a good witness in court, go to the adult bookstores in your area and purchase the hardest adult material he or she can find, and put it in a sealed bag stapled with the receipt. That bag may come in handy some day.
19. Mind Your Promotional Activities. Many adult webmasters are extremely careful when it comes to the content, but throw caution to the wind when it comes to marketing activities. Are your affiliates spamming the newsgroups, or sending out unsolicited emails? At least sixteen states have laws regulating the dissemination of unsolicited email (SPAM). Make sure your marketing activities do not cause more trouble than they’re worth.
20. Translate your site. Don’t ignore the substantial foreign markets that are ready and willing to pay money for your content, if they could only read your text! Various online and human translation services are available to translate the text of your site into virtually any language. Identify those markets which will provide adult Webmasters with the best conversion rates, and translate your sites into those languages.
21. Ask for, and Listen to, Advice from Experienced Professionals. The adult Internet industry is one of the friendliest industries in existence. Experienced industry players are happy to take newbies under their wing as a mentor. Often newbies are either afraid to ask for advice, or believe that they don’t need it. Much can be learned from industry veterans who are often more than willing to share their experience learned from many mistakes.
Taking some of these tips to heart will drastically reduce your learning curve and allow you to benefit from what would otherwise be years of experience. Go forth, and prosper!
Lawrence G. Walters, Esquire is a partner with the law firm of Weston, Garrou & DeWitt, with offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”