Traffic Brokers And 2257

Quentin Boyer
Much has been said and written lately regarding the proposed new 2257 regulations, and while there is a treasure trove of information available at this point, much of what has been written focuses on the impact of the new requirements on "primary producers," a term which, in a nutshell, means the individuals and companies actually shooting the content in question.

Far less has been said about the impact on webmasters who would not fit into the primary producer category, and who are simply using content as a "hook" for their advertising — a means of driving traffic to the affiliate programs they participate in. The purpose of this article is to assist this variety of webmaster, for whom I will use the term "traffic brokers."

By definition, a traffic broker is someone whose primary income derives from the traffic they refer along to sponsor and affiliate programs, someone who may purchase content for the purpose of creating galleries, and/or use promotional content supplied by their sponsors for free, but who is not engaged in any actual content production of their own.

At this point, I should point out that I'm not a lawyer, and what I write here does not constitute legal advice. I have, however, delved into this subject quite deeply, and I've consulted at length with our own very experienced and knowledgeable adult industry attorneys, who have in turn spent weeks going over the proposed new regulations in microscopic detail.

First and foremost, traffic brokers have to recognize that the proposed changes to 2257 put a new burden on them as secondary producers. While some experts have noted that the revised definition of secondary producer has been expanded to a preposterous extent under the proposed new regulations and voiced the opinion that such a definition would not hold up in court, there is no question that the new regulations, as written, do have the effect of making most traffic brokers into secondary producers. An exception is those eschewing the use of sexually explicit content altogether in their promotional efforts.

For example, if you operate a TGP that uses preview thumbnails, you will need to acquire the required records from the primary producer and maintain the required information about the primary producer, even if those thumbnails are the only images on your site.

Altering An Image
It is also important to note that simply altering an image so that it does not show sexually explicit activity does not alleviate the 2257 requirements. If the original image is subject to 2257, then it remains so regardless of cropping, blurring or any other form of alteration.

While many attorneys agree that the new definition of secondary producer will most likely not stand up to the test of court, there is no question that the new regulations, as proposed, have altered the definition of secondary producer to include virtually all adult webmasters. For the purpose of discussing the definition of secondary producer with your attorney(s), refer them to § 75.1 (c) (2).

The second and far thornier section of the proposed new regulations that I'd like to highlight comes with § 75.2 (a) — covering the Maintenance of Records. There is one particular statement therein that is especially controversial, in terms of the different interpretations I have been provided from different attorneys. I'm referring to the following statements, excerpted from § 75.2 (a) (1) through § 75.2 (a) (1) (ii):

"[F]or any performer portrayed in such a depiction … the records shall include: (ii) Where the depiction is published on an Internet Computer site or service, a copy of any URL associated with the depiction."

The potentially problematic part here is the phrase "any URL associated with the depiction." A strict, conservative reading of this language would lead one to conclude that, for all images to which 2257 pertains, the required records would have to include all the URLs on which those images are displayed — something which, in my opinion, is impossible from a practical standpoint. Given that images can be (and are, every single day) downloaded, renamed, and uploaded to another location on a regular basis, maintaining a comprehensive list of URLs on which a given image resides is unfeasible.

Several attorneys have simply brushed aside such concerns, saying something to the effect of "a common sense reading would suggest that you must supply them with the list of URLs that you are personally responsible for and/or own — not literally all URLs that the image is actually associated with."

While I normally defer to just about any attorney when it comes to the subtler nuances of legalese, I haven't found anything in the language of the proposed new regulations to support the conclusion that there is any manner of "common sense" limitation to the phrase "any URL associated with the depiction." And, more importantly, our attorneys haven't found anything to support that conclusion, either. I concur that going by the literal interpretation yields a scenario in which compliance is virtually impossible, and that if subjected to the scrutiny of an actual case, this requirement would be found to be overreaching and too burdensome, more than likely.

The question remains, though, if the strict/literal interpretation is what the Justice Department intended to communicate and require, how does one go about complying? That's another good question for your attorney(s); refer them to § 75.2 when it's time to ask.

The proposed new regulations are a rich and multifaceted topic, to be certain, and I've only scratched the surface here. While I've highlighted just a small portion of the new regulations, it is crucial for anyone in the adult industry — online or off — to address the full text of the new regulations with your attorney...

Quentin Boyer is the director of public relations for Tucson, Arizona-based TopBucks.

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