I remember doing some pretty stupid stuff in my younger days. I couldn’t count the number of times that I got into trouble in school if my life depended on it, but what I do remember is that the majority of my stupidity didn’t stem from original ideas. Rather, most of my seemingly brilliant actions were actually emulations or copies of something I’d seen one of my “friends” do, or something I saw on television (we are talking pre-internet here).
Time and time again, my teachers and parents would spout off, “If all your friends jumped off a bridge, would you?” At first, I knew that every time I heard those words, punishment wasn’t far behind, but as I got sassier, I’d respond by saying, “It depends on how high the bridge is.” It appears that I was always destined to be a lawyer. In all seriousness, there is a substantial lesson to be learned here.
Emulation, duplication and copying of someone else’s unlawful conduct can easily be avoided so long as you have the strength to ignore attractive stereotypical judgments.
Being a lawyer entails having a client base that can be neatly organized into two categories of clients:
1. Individuals and businesses that are already in trouble or require immediate legal services
2. Individuals and businesses that want to prevent and stay out of future trouble.
I’m not going to share which category of client I prefer, but a major commonality that I’ve come to realize is that in both categories, my clients are constantly presented with the challenge of choosing to proceed with a course of action or inaction based entirely off seeing someone else engaging in the same activity.
To illustrate the point I’m trying to make, lets utilize the recent COVID-19 pandemic in the context of content production. Shortly after COVID-19 seemingly spread uncontrollably, the adult entertainment industry called for a “production hold.” I’ve come to learn that that the majority of content producers did, in fact, suspend content production, but I also understand that there were quite a few content producers that continued despite the inherent health risks.
It did not take long for my telephone to start ringing with producers asking why they should continue to suspend production when so many others were choosing to press forward without regard to the hold. The purpose of this article is not to debate who was right or who was wrong, but is intended to show that people were ready to base their behavior on what others were doing. In this instance, too many people were making decisions involving the very health of another individual based solely on what others were doing (right or wrong) instead of making responsible choices based upon their own research and the guidance of medical experts and research groups across the world.
Let’s take this illustration a little further. FOSTA/SESTA has undoubtedly been one of the most impactful legal game changers that the adult entertainment industry has ever seen. It has certainly resulted in an unquantifiable number of website operators ceasing operations and sex workers being forced away from the safety of online platforms. From a legal standpoint, there is no doubt that website operators that offered certain types of services were left with no choice but to stop operating in order to comply with FOSTA/SESTA, yet despite the law and its potential penalties, some folks offering prohibited services have chosen to continue to operate.
Once again, this has led to daily inquiries from website operators asking how they can launch a similar platform to another site they’ve found engaging in unlawful business. Even after I provide detailed legal analysis as to why the prospective website operator should steer clear and why the site they offer as an example worthy of mimicry is operating in violation of FOSTA/SESTA, they’re simply unable to get past the fact that someone else is “doing the same thing” and so “it has to be okay.” I’m very proud of the fact that I’ve been able to stop many individuals and businesses from “jumping off the bridge” and self-destructive behavior, but I’m well aware that there are also those that will not listen or are willing to risk “making the jump” regardless of the potential outcome.
Previously, I’ve written and spoken about the substantial dangers of utilizing legal documents that belong to someone else; more specifically, I’ve explored the dangers of borrowing someone else’s model releases or website disclosures. I have seen this practice result in disaster time and time again. When I ask a client why they chose to utilize someone else’s contracts the answer is 99.9% of the time the same, because “if Jane Doe is doing it that way and she is so successful, then it must be ok.” This line of thinking is the equivalence of jumping off a bridge because you saw your friend do it first.
Having good ethics, morals and character are essential in any business, and even more so in an industry as high risk and sensitive as the adult entertainment industry. Evaluating someone’s ethics, morals and character should never be based on the financial success of the person, but unfortunately, this mistake is made by so many on a daily basis. People will mistakenly assume that because someone else is financially successful, then whatever he or she is doing has to be the right path to follow. This line of thinking will never work long term. Just because someone else is doing something that hasn’t gotten them in trouble, doesn’t mean that their behavior should be emulated.
The law differs from city to city and country to country. I will never understand why someone from the United States would ever think that they could emulate the business practices of someone from Germany, or the Netherlands or Cyprus or anywhere else for that matter. Yet time and time again, especially in the case of online business operators, people will blindly emulate the unlawful behavior of someone else simply because they erroneously believe that jurisdictional law doesn’t apply to online businesses. This, again, is a troublesome line of thinking and a recipe for disaster.
Gathering information, conducting research and seeking legal counsel are the appropriate steps in making an important business decision that may or may not be legal. Emulation, duplication and copying of someone else’s unlawful conduct can easily be avoided so long as you have the strength to ignore attractive stereotypical judgments.
This article does not constitute legal advice and is provided for your information only and should not be relied upon in lieu of consultation with legal advisors in your own jurisdiction. It may not be current as the laws in this area change frequently. Transmission of the information contained in this article is not intended to create, and the receipt does not constitute, an attorney-client relationship between sender and receiver.
Corey D. Silverstein is the managing and founding member of Silverstein Legal. His practice focuses on representing all areas of the adult industry and his clientele includes hosting companies, affiliate programs, content producers, processors, designers, developers, operators and more. He is licensed in numerous jurisdictions including Michigan, Arizona, the District of Colombia, Georgia and New York. Contact him at MyAdultAttorney.com, corey@myadultattorney.com and (248) 290-0655.
