Home > News > Arguments Heard Over Obscenity, CAN-SPAM Act Case • Bookmark   • Newsletters   • Register Search Options

NEWS STORY

Arguments Heard Over Obscenity, CAN-SPAM Act Case

Arguments Heard Over Obscenity, CAN-SPAM Act Case
Get XBIZ News
Jun 15, 2009 11:15 AM PDT    Text size: 
SAN FRANCISCO — Oral arguments were heard last week in the joint appeal of the first convictions in the jurisdiction of the 9th U.S. Circuit Court of Appeals for Internet obscenity not involving child pornography and the first convictions ever under the federal CAN-SPAM Act.

Gary Jay Kaufman of The Kaufman Law Group and Greg Piccionelli of Piccionelli & Sarno — attorneys for James Robert Schaffer and Jeffrey A. Kilbride respectively — argued the case before a three-judge panel of the 9th Circuit.

The argument focused on an unconstitutional jury instruction that allowed a jury in Arizona to convict Schaffer and Kilbride of obscenity based on lay witness testimony as to community standards existing in places all over the U.S., including Ames, Iowa, and Boston.

Kilbride of Venice, Calif., was sentenced to more than six years and Schaffer of Paradise Valley, Ariz., was sentenced to more than five years in prison after they were found guilty of embedding porn in mass emails.

In November, 2007, after hiring The Kaufman Law Group and Piccionelli & Sarno, both Schaffer and Kilbride were granted bail pending appeal.

Kaufman told XBIZ that he’s cautiously optimistic about the outcome.

“The panel was very receptive to our arguments,” Kaufman said. “The law as it stands is that obscenity is judged by local community standards. We, of course, believe that a national standard is more appropriate for Internet communications.

“Whether the court agrees remains to be seen. But one thing we do know, it’s either one or the other, and, in this case, the jury got neither. That was reversible error. I hope that the court will agree.”

Piccionelli, meanwhile, said that the judges’ questions “showed a clear appreciation of the problem of determining which community’s standards should apply to allegedly obscene content transmitted via the Internet.”

“It was a problem brought front and center in this case by a jury instruction so erroneous that, to this day, no one knows just which community’s or communities’ standards were actually used by the jury to convict the defendants,” he said.

Piccionelli said that he’s hopeful that the panel will decide that content transmitted online be judged by a national community standard.

Kilbride and Schaffer began their bulk email operation in 2003, using international servers and mismatching “reply to” and “from” addresses, making it difficult to trace the spam emails, according to court filings.

The Justice Department said they registered their domains under the name of a “fictitious employee at a shell corporation” and that the two had set up in the Republic of Mauritius, another CAN-SPAM violation.

They also are alleged to have used overseas banks to launder and hide money from the IRS.

Schaffer also was charged with 2257 violations, after the Justice Department discovered he had not maintained appropriate records for the adult performers featured on Boobs.com, CumShots.com and FaceSat.com, three websites he operated overseas through The Compliance Company and Ganymede Marketing.

With the convictions, both were fined $100,000 and forced to hand over $1.1 million of their $2 million in spam profit.

They also were ordered to pay America Online $77,500 after the conglomerate claimed to have had 1.5 million customers complain about spam.

Colin Hardacre, of The Kaufman Law Group, told XBIZ that it would behoove business professionals active in the online adult industry to follow the case.

“If the 9th Circuit finds that this instruction was not plainly erroneous, then Internet obscenity prosecutions will become a circus, with the prosecution and defense each bringing in witness after witness to testify to community standards in location after location where the material was allegedly viewed,” he told XBIZ.

“This case should be on everyone’s radar.”

More ways to get XBIZ News:  RSS Feeds  |  E-Newsletters  |  Desktop Widget  |  Mobile
Looking for porn star news and behind-the-scene videos? Check out XFANZ.com !

PROFILES & BIOS

Q&A: Holiday Products Founder Moe Levy Reflects on Decades of Career Accomplishments

Born and raised in the Bronx, N.Y., as an only child, Moe Levy learned to become business savvy at an early age from his parents. Even more importantly, Levy says his parents instilled in him their people-oriented... More »

AWSummit’s Alexandru Gheorghe Has Eyes Set on Growth

The AWSummit has quickly made its mark and has become a top draw for chat hosts, studios and cam sites from all over the world. Founded by CEO Alexandru Gheorghe just two years ago, the cam-centric AW... More »

WIA Profile: Elle Sonson

Each month, industry news media organization XBIZ spotlights the career accomplishments and outstanding contributions of Women in Adult. WIA profiles offer an intimate look at the professional lives of... More »
XBIZ NEWSLETTERS
Stay informed of the latest industry developments. Get XBIZ newsletters delivered to your inbox. Subscribe today!
Enter email address:

* To manage existing subscriptions click here.






POPULAR PRODUCTS & SERVICES
Submit your press release to
multiple news outlets with 1 click.
Subscribe to RSS news feeds or
add free content to your website.
Access XBIZ news and articles
with your mobile device.
Access the latest issues of the industry's leading trade publications in digital form. View online or download for offline viewing.

UPCOMING EVENTS

XBIZ 2017

Jan 09 - Jan 13
Hollywood, CA

XBIZ Awards 2017

Jan 12 - Jan 12
Los Angeles, CA

ANME Founders Show

Jan 14 - Jan 15
Los Angeles Marriott Burbank Airport

Everything To Do With Sex Show

Jan 20 - Jan 22
Montréal, Québec
Everyday thousands of business professionals browse XBIZ's industry directory for quality products and services. Not listed yet? Your company could be losing potential new business. Submit your company today!
Use XBIZ RSS feeds to stay informed of the latest industry developments or as a content syndication tool for your website!