educational

Taking the Heat

Gregory Piccionelli
One definition of insanity, usually attributed to Albert Einstein, is "continuing to do the same thing over and over, and then expecting different results."

While the oft-used phrase is not really a medical definition of mental pathology, it sure describes the insane behavior of Congress in its efforts to address the problem of online accessibility of adult content by minors.

Since the inception of the World Wide Web, Congress has been pressured to "do something" to prevent minors from accessing explicit sexual materials online. In response, twice, the "something" was the hasty enactment of ill-conceived legislation that criminalized the online distribution of sexual content to persons under 18 years of age. The first, was the prohibition against transmission of "indecent" material via the Internet included as a part of The Communications Decency Act of 1996 ("CDA") followed by the prohibition of online transmissions of "harmful matter" to minors set forth in The Child Online Protection Act (COPA) in 1998.

Both the CDA and COPA threatened online distributors of constitutionally protected adult content with long jail sentences and enormous fines if a minor accessed "indecent" materials, in the case of the CDA or "harmful matter" as prohibited by COPA, from their websites. Like most adult business regulations, both laws were enacted with virtually no input from the adult entertainment industry.

Also, both laws exhibited our esteemed lawmakers', shall we say, "interesting" approach to the problem of children seeking porn by imposing no penalty whatsoever for any lack of parental supervision over their children's use of a parentally supplied computer and Internet connection to access sexual content.

Both laws also completely ignored the fact that many, if not most, of the foreseeable violations of the regulations, including those that could send a webmaster to prison for years, would be the result of kids willfully and intentionally disregarding one or more warning notices such as "ADULTS ONLY!" or "YOU MUST BE OVER THE AGE OF 18 YEARS!"

Both laws also ignored the fact that even complete compliance by American webmasters with the regulations would have virtually no effect on a child's ability to instantly access adult content online via thousands, if not millions, of foreign adult websites operating beyond the practical reach of U.S. prosecutors.

Fortunately, however, since the ruling in ACLU vs. Gonzales on March 22, both laws have also taken their rightful positions on the ash heap of laws enacted at the behest of the religious right that have been properly struck down in due course by the courts as unconstitutional infringements of our most cherished civil rights.

But now that Congress has twice enacted legislation prohibiting online distribution of sexual content to minors that failed to survive judicial scrutiny, what will Congress do next? After all, the problem hasn't magically disappeared. You can bet kids are still trying to access adult content online.

In fact, one could argue that the problem of minors accessing online content has probably been exacerbated by a second congressional failure to enact a valid law to deal with the problem of a minor's access to online adult content by reinforcing in the minds of many a belief that Congress will never be able to do so.

I am concerned, but not surprised, about the fact that this view of Congressional ineptitude seems to be taking hold amongst what appears to be a growing number of webmasters who contend, albeit what I believe incorrectly, that they can publish explicit hardcore material on their splash page, without any warning notice, and do so without any risk of prosecution whatsoever.

While an important victory for the industry, the COPA ruling does not mean that online publishers can now display anything they choose on their splash page with impunity. The ruling had no effect on any of the other laws regulating the distribution of adult content, such as the obscenity laws.

Nevertheless, I can certainly understand how the judicial invalidation of COPA, being Congress' second failed attempt to regulate the nature of the content appearing on an adult website, could easily be interpreted by some webmasters as an indication that website content was not now subject to any regulation.

Such a mistaken response to the COPA ruling is far more understandable, however, than the response of our Congressional representatives, which, true to form, appears to be, well, same 'ol, same 'ol. In the wake of the COPA ruling, on April 11, 2007, Senator Max Baucus (D-Mont.) and Senator Mark Pryor (D-Ark.) introduced legislation that they have creatively entitled "The Cyber Safety for Kids Act of 2007" ("Kids Act").

(I, for one, was quite impressed by the title in that it is unlike COPA, COPPA, the Adam Walsh Child Protection Act, and about a dozen other anti-porn bills introduced in the last few years, by its bold substitution of the word "Kids" instead of "Child" or "Children.")

The bill, is, you guessed it, essentially another law requiring websites containing "material that is harmful to minors" (i.e., evil, "damn us all to hell" adult websites) to do things no other content publishers are required to do, and to do them as specified or be punished. Now that I think about it, the bill could have been more briefly, economically (less ink) and more accurately entitled "CDAIII", "COPA II" or even "Third Time's A Charm Act."

It appears that once again politics, and not a sincere desire to solve the problem of minor access to online sexual content, will dictate the actions of Congress. For evidence of this all you have to do is first focus on the "Safety for Kids" part of the title.

Next, while keeping in mind the words "Safety" and "Kids," look through the proposed legislation for the part of the legislation that imposes real duties on parents to install adult content filters on their minor children's computer or alternatively, the part where parents will be subject to real penalties for failing to do so. Can't find those provisions? Well, I couldn't either.

But I pretty easily found the part about what will happen to operators of websites that are not in compliance with the law and their being subject to such "penalties as the Secretary of Commerce shall prescribe."

I also found the part that you might say is the "creative" part that slightly distinguishes this law from the CDA and COPA. (I use the word "creative" loosely here because I thought the bill kind of bears a strong resemblance to or smells like an idea put forth by some other fellahs hocking another top level domain idea.

But I know that the Baucus/Pryor concept must be creatively different because those other nice .XXX guys said our government would never try to make an adult TLD mandatory.

The Kids Act requires operators of websites containing "material that is harmful matter for minors" to only operate their business in a separated and segregated "new" top level domain for adult sites or they will be subject to the law's penalties. Specifically, Section 4 of the bill requires that:

"[A]ny operator of a commercial Internet website or online service that has as its principal or primary business the making available of material that is harmful to minors shall register such website or online service with the new domain and operate such website or online service under the new domain."

Regardless, given the enormity, complexity and number of nation-, species- and planet-threatening problems facing us, the song and dance presented to us as part of the Baucus/Pryor Kids Act, just makes me wonder whether it's time that we, the good and rational people of this country, should all consider contributing to a charitable fund to treat our beloved federal representatives to a day off for a nice afternoon of electric shock treatment.

Neither I nor anyone I know in or out of the adult business supports the idea of allowing kids to have access to sexually explicit content. While everyone is entitled to their opinion, I think that anyone advocating such a thing should be entitled to a complimentary pass to the aforesaid Electro Shock Day festivities.

But on the other hand, after two failed attempts, its clearly time that our federal legislators address the problem of child access to online adult content by doing something other than enacting another clearly unconstitutional law.

To do so for a third time would truly constitute some kind of group insanity. Nevertheless, the odds are that either the Kids Act or some other outrageously unfair anti-adult industry act will be enacted by the 2008 election unless an act of God visits Washington and spares us from more of this insanity.

The real power most webmasters do not know they have.
Regardless of what unconstitutional law Congress enacts in this election cycle, there is an alternative way of dealing with the entire problem of minors acquiring online adult content that actually favors the adult website owner, is more legally supportable and, if broadly adopted, would almost certainly decrease the amount of adult materials accessed by minors more than any action taken by Congress or any other governmental entity to date.

The alternative strategy developed by our firm for our clients years ago simply exploits the fact that there are a number of laws that impose the legal responsibility and liability for the unauthorized accessing of adult content by minors where it belongs, which, believe it or not, is most often properly imposed on a child who intentionally disregards posted site warnings and unlawfully acquires valuable intellectual property, and/or his or her parents who have knowingly or negligently assisted the child in such illegal activities.

Children and parents as wrongdoers? Webmasters and adult content owners as victims?
I am usually confronted with a certain amount of incredulity when I first inform a client that a minor who intentionally gains unauthorized access to an adult website in willful disregard of appropriate warnings and site use terms can be subject to civil and/or criminal liability.

Once I have explained why this is the case, skepticism usually turns into rapt interest as I further inform the client that the child's parent(s) in certain circumstances may also be legally and financially liable to an adult webmaster for damages resulting from the unlawful activities of their precocious little tike.

If the concept of webmasters and content owners being the good guys and a child and his or her parents being the bad guys seems alien and uncomfortable, it's OK, I assure you that you are not alone, I won't take offense and you'll get over it. But while you are wrestling with your new role, consider why the concept seems so strange. I think it is a manifestation of how truly unfortunate it is that practically everyone in America, including the adult entertainment business itself, seems to have bought into the concept that only kids and their parents can be the victims and only pornographers can be the wrongdoers when kids consume pornography.

Because of this inherently self-sabotaging self-image, the industry as a whole has let the other side completely define the problems, control the debate and dictate the solutions. This assumed good versus evil dichotomy, in turn, has firmly established in the media, and in the minds of most people, including most adult entrepreneurs, an erroneous understanding of the law and who is liable for what when minors impermissibly access properly protected adult content on a properly configured adult website and essentially steal content they are not entitled to possess.

But not everyone has been fooled.

I assure you that many adult entertainment companies possess a sufficiently sophisticated understanding of what the law actually is to enable them to swiftly and effectively respond to wrongful allegations of content distribution to minors, conclusively address infringement of their proprietary rights by minors, minimize the likelihood of becoming a prosecution target for criminal distribution of adult content to minors and, should it become necessary, to mount the best defense if actually criminally charged with distribution of adult material to minors.

Unfortunately the specific requirements for an adult entertainment company to optimally address issues that arise when a minor accesses its online content vary from company to company, like many problems uniquely associated with adult businesses. As such, the subject is best discussed in person with a reputable and experienced adult entertainment attorney.

However, I can share with you a couple of basic concepts that I have found over the years to be applicable to a wide range of site types and generally useful in provoking a different way of thinking about the powerful legal rights and opportunities possessed by an adult business.

Intellectual property is property.
Under our system of law there are three universally recognized forms of property: real property (homes, office buildings, land, etc.); personal property (computers, automobiles, paper clips, etc.); and intellectual property (any product of the human intellect such as an idea, invention, expression, etc.).

There are different types of intellectual property depending on the type of product of human intellect protected and the system of legal rights associated with that product. For example, expressive works, such as music, photographs, video, website designs, software, books, stories, advertisements, etc. are the types of product produced by the human intellect that are protected by the series of rights called copyrights.

Most adult websites are comprised of intellectual property primarily comprising works such as photographs, video clips, text, design features like graphics and software, all of which are protected by the copyright laws of the U.S. and most other countries in the world. The website as a whole can also comprise a unitary work protected by the copyright laws of the U.S. and other countries.

Use of property associated with a website can be conditional and subject to a license.
The use of property such as personal property, like computers and computer servers and the use of intellectual property like the use or downloading of a website or any parts of a website (e.g., individual video clips or the public section of a site vs. the members only section) can be the subject of a license. The use of intellectual property without any right to do so is called an infringement of the owner's intellectual property rights. Infringement of intellectual property rights can, depending on the circumstances, subject the infringer to virtually unlimited liability.

For example, suppose a party were to make an unauthorized copy of a single photograph that had previously been registered with the U.S. Copyright office (cost: $45) by its owner. Suppose further that the copy was made as the result of the infringer engaging a link that caused his browser to load a webpage that contained the subject photograph despite the fact that the infringer knew he did not have the right to access the webpage. Believe it or not, the infringer could potentially be forced to pay the owner of the photograph up to $150,000 in damages and pay the owner's attorney's fees if the owner sued the infringer.

There is no doubt that the fact that an owner of a website can control and place conditions upon the use of a website's intellectual property, as well as the use of the personal property through which it is served, provides the website owner and a skilled legal practitioner with a broad array of capabilities and powerful legal tools to better protect the website owner's interests.

The most common license document governing how a website can be used by a visitor to the site is a website terms of use license. A website owner can employ many use licenses for different parts of a website.

For example, some websites use special warning pages before the splash page or any other part of the site that depicts sexual material to advise the visitor that the visitor's license to use the website's intellectual property (its photos, videos, graphics, etc.) beyond the current page and the visitor's right to interact with the website's personal property (its servers, for example) is conditioned upon the user satisfying certain specified criteria such as a current age of 18 years or older or current location outside of one or more jurisdictions that are known to be hostile to adult content.

A party may not access a computer or database beyond the authorization granted by the owner.
In the last 10 years a number of federal and state laws have been enacted that make it a crime to access a computer or a computer database in excess of the authorization granted by the owner of the computer or database. Additionally, there are a number of related statutes and similar laws that provide the owner of a computer or database with the right to sue a person who accesses the computer or database in excess of the authorization given the person by the owner. These laws, originally designed to protect personal and intellectual property from hacking, espionage, sabotage, etc., when properly exploited can be some of the most powerful and effective weapons in the website owner's legal arsenal.

Now, to give you an idea of just how much field-leveling power a few properly used property rights can be, consider the following scenario. Junior, a precocious and horny young lad of 17 years currently located in Salt Lake City wants to view the hot content at xyz.com, an adult website owned by Company X. Company X, whose website servers are in California, does not authorize, and in fact forbids any person who is under the age of 18 years or who is currently located in Salt Lake City to access its website via its servers and databases or to make copies of any of its intellectual property comprising its website, except the warning page on which the aforementioned prohibitions and applicable laws are clearly set forth.

Suppose that Junior reads the warning and then engages appropriately configured links that effectively document his intentional and knowing disregard of Company X's warning. Soon thereafter, Junior enters the site proper and over the next two hours views 100 video clips that are all works registered by Company X with the U.S. Copyright Office. In 120 minutes, Junior has violated no less than four criminal laws subjecting him to up to 34 years in jail, and he could be sued by Company X for copyright infringement, violation of the federal Stored Communications Act and California's Computer Privacy Act. If Company X were to sue Junior, it could seek damages of $15 million resulting from the willful copyright infringements alone. But of course, Junior probably doesn't have $15 million laying around, but since its my hypothetical, let's say that he is the live-in son of a wealthy Utah software developer raking in the dough from his contract to administer Utah's next generation "Do Not Email Registry," and, he used dad's computer. (A guy can dream can't he?)

I suspect that many readers were not aware of some or perhaps many of the rights or laws discussed above, particularly in the context of their application in the context of adult websites. This, unfortunately underscores again just how far I believe the industry has to go before it acts in a manner that commands that it be treated fairly and characterized more truthfully. For if a relatively large number of adult entertainment companies had actively enforced their rights against a significant number of the kids who have intentionally and wrongfully accessed their sites, I think that it is very possible that the industry might well have been looking at a much altered regulatory environment than the one confronting it today.

Gregory A. Piccionelli specializes in Internet Law, Entertainment Law, including adult entertainment matters, and free speech issues. He can be reached at (310) 553-3375.

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