Webmaster Access Legal Tips

Gretchen Gallen
SANTA MONICA, Calif. -- Amid the crowds, the partying, the networking, and the heady flow of information that generated from Webmaster Access this weekend, a 'Legal Issue' panel sent a more sobering and cautionary message to the webmaster community than expected.

At a time when the adult world is continually being dogged by legal threats, new laws, old laws, patent infringement, child pornography, obscenity charges, and the jaundiced eye of the Federal Government, the panel opened with a call to action from Adult Sites Against Pornography (ASACP) Executive Director Joan Irvine.

Irvine pinpointed the potentially harmful guiles of child pornographers, the dangers of getting caught up in child porn investigations, and a new trend among child predators that use legitimate affiliate programs to launder child porn profits and ride nefariously on the coattails of the adult entertainment industry.

Even adult website logos that end up on sites being investigated for child pornography could easily find themselves in hot water, said Irvine. Reputations can be ruined, fortunes can be lost to insurmountable legal fees, and sometimes the end result is jail.

"Be careful who you affiliate with," said Irvine. "If your logos or links are in any way related to a child porn site, then you are vulnerable to an investigation."

In this new political and legal era of adult webmastering, the message was loud and clear: Everyone is potentially culpable, everyone is potentially liable, and within the interconnected infrastructure of the Internet, no one is safe from litigation unless deliberate measures are taken to remain in compliance with current laws.

Whether compliance means implementing ASACP's 'Best Practices' for self regulation of an adult website, hiring industry-knowledgeable attorneys on matter pertaining to Acacia and other types of patent infringement, or knowing the nitty-gritty of obscenity laws, the Child Online Protection Act (COPA), the First Amendment, or simply becoming more thorough and lawful in making sure that adult models are in fact just that, adults.

According to intellectual property lawyer and longtime legal ally of the adult world, Greg Piccionelli, at this time in its history, the adult world is like the Chinese character for crisis; it embodies both the elements of danger and opportunity, and anything is possible.

"Things are not the same as they have been in the past," Piccionelli said. "The danger factor has been ratcheted up and the religious Right have formidable weapons on their side right now. It's the beginning of the war."

Piccionelli added that he and fellow lawyer panelist J.D. Obenberger were not trying to scare up business from adult webmasters, but that webmasters need to get smart and protect themselves in today's more hostile legal and governmental environments. Key issues that have been steamrolling toward the adult world for some time, have finally arrived.

You need to be forewarned to take every possible defense," Piccionelli said. "These are hyper-prosecutorial times. Do your research and get a good attorney if you are in this business. While adult is a very, very lucrative industry, it is also very, very dangerous. You need to know the minefield you are treading into."

Piccionelli pointed to child pornography and synthetic child porn as being a few of the hottest issues facing adult webmasters, in addition to newly instated spam laws and intellectual property litigation that he said are all "issues that are going to sweep the industry."

Obenberger made an analogy between the John F. Kennedy presidency and the current state of affairs for adult entertainment, both being pinnacle times in history for exercising freedom of speech and freedom of association.

"The spirit of liberty lives on in the servers and websites of the adult industry," Obenberger said. "You are at the forward edge of a battle area, a place where liberty is at peril. The very ideas behind free expression enable you to do what you do. You people are the last hope for a free society. If you lose, we are all in danger."

Among Obenberger's many pointers for the adult industry, he focused mostly on warning webmasters how essential it is that all website content be lawfully obtained and thoroughly documented in the event of an investigation or legal inquiry.

He especially pressed the point that webmasters, in all cases related to models, must be wary of age requirements and should not take the risk of hiring underage models and then getting slammed with child pornography charges.

"Set up a defense that shows you had reasonable compliance and that you believed he/she was over the age of twenty-one," said Obenberger. "2257 is your friend," he said, referring to the U.S. Code Collection that requires anyone who produces material that contains depictions of actual sexually explicit conduct to create and maintain identifying records pertaining to every performer. That includes names and previous names used, proof of age, date of birth, and current and previous addresses.

"Prosecutors will find it much more difficult to shut down adult websites under current obscenity laws then they will in finding a 2257 violation," said Obenberger. "More and more the government is taking this route and they can use it as a weapon against you forever, even send you to jail for five years."

Obenberger added that under a section of COPA, Congress is also asking for all adult webmasters to voluntarily refrain from putting hardcore content on their homepages.

All panelists agreed that even the Adult Verification Services (AVS) business models have a lot at stake in these changing times, and that in many cases AVS sites, which serve as conduits or "enablers" for thousands of other sites, face potential liability by being linked to sites they have no control over.

While Piccionelli has remained on the outskirts of the litigious ordeal with Acacia because of his own personal dealings with Acacia over patents he holds in his name, he is still adamant that webmasters take serious legal steps to protect themselves against patent infringement, which can be as costly to defend as it can be to prosecute.

However, Piccionelli added, there are more than 200 patents out there that cover basic functions of the adult Internet industry and more rounds of patent infringement are imminent.

"Acacia is just the tip of the iceberg," he said. "How Acacia fares will determine how many other people will come out of the woodwork...There is a perception out there that the adult world is swimming in money. Blood in the water attracts more sharks."

The final word from all three panelists was that the next wave of adult entertainment prosecutions is going to be all about protecting children, whether it is used as a bogus defense to go after legitimate adult websites, or to hunt down and prosecute bonified child pornographers. Under the current presidential administration, those lines are too often blurred.

"My mantra to those who don't seek legal advice is 'keep the kids out of the material and keeps the kids away from the material," said Piccionelli.

"Check your links," warned Irvine. "Know where your traffic is going, where it's coming from, and where your money comes from."

Obenberger added, "Don't risk being involved with child porn. "Make sure you are not facilitating content that is illegal. There will always be girls under twenty-one trying to get into bars, but porn companies cannot risk being convicted as child pornographers. Your life will be transformed in ways you cannot believe."

The last word from Piccionelli was that, "Time is up. Take every defense available and put it up on your site for the world to see," he said. "Link up only to really good purveyors in this industry who have also taken steps to protect their own rights. Everyone is linked together and the government knows this. All they need to do is follow the link."