Top Attorneys Focus on Legal Landscape at XBIZ LA

Nearly a hundred attendees filled the seats at the Adult Law: Today's Legal Landscape seminar at XBIZ LA to learn how to leverage the current laws to better protect themselves in the ever-changing legal landscape.

Moderated by XBIZ's executive director of publishing, Don Parret, the panel included attorneys Al Gelbard, Evan Stone, J.D. Obenberger, Greg Piccionelli and Marc Randazza.

One topic that was briefly touched on was the new law that prohibits cross sales, the passing of a customer's credit card information to a third party. More specifically, if webmasters have a free trial offer with a negative option, they might be violating the law.

"The best thing to do is to make sure you're not violating the law," Obenberger said.

He said the free trial offer may be flawed and suggested webmasters look at their terms of service and change the structure if necessary.

"This can be done legally and can be accommodated under the new statute," he added.

Another hot-button issue was the BitTorrent litigation, spearheaded by Evan Stone, who currently has 16 BitTorrent lawsuits pending.

"The sites that are hosting these file-sharing sites are located overseas, so the only alternative is to pursue the end users," Stone said.

Stone said his method of joining together hundreds of users in one lawsuit has worked fairly well, securing wins in most of his cases. He said in order for the case to work, he has to prove that all the pirates had worked together to download the infringing content.

But the one thing he didn't anticipate was the unwillingness of Internet service providers to give evidence such as the names and addresses of the infringers.

Randazza said he respectfully disagreed with Stone's methodology, saying that filing lawsuits against hundreds of BitTorrent users will more than likely get an unusual response from the presiding judge. He said he disagreed with filing the suits in jurisdictions that are comfortable for the attorneys.

"I'd rather go quietly and successfully rather than a big rumble," he said.

Piccionelli said he agreed that BitTorrent litigation is a way to stem the tide of copyright infringement, but not something that should be counted on as a new revenue stream.

He added content producers should consider a few things before going to court. For example, litigation may help producers improve their brand value. He also said producers need to do their homework to make sure how this can be done correctly.

In regards to obscenity prosecutions, Gelbard said he believed the Obscenity Prosecution Task Force, which prosecuted and lost the John Stagliano trial, has been disbanded.

But Obenberger said if that is true, it doesn't mean the pressure is off the adult industry.

"It doesn't mean the federal government isn't interested in porn prosecutions. They'll give the cases to more seasoned lawyers," he said.

The conversation then moved on to the latest developments with 2257.

"While we're making headway, you've got to make sure you're in compliance with 2257," Piccionelli said.

Obenberger added that if 2257 is ruled as constitutional, it will be enforced and there will be inspections.

"Please," he said. "90 percent of people aren't in compliance. If you don't comply, your day of reckoning is going to come."

The discussion then moved on to how 2257 can be used as a weapon in BitTorrent lawsuits where the infringer, who downloaded the illegal content, can be charged with violating the statute. Both Obenberger and Gelbard said this wasn't a good idea.

"It's dangerous to use 2257 as a sword when you're trying to show it's unconstitutional," Gelbard said.

In regards to .XXX, Obenberger said it would give the government too much power.

"It's a death switch. This is evil and it hurts freedom," he said.

Both Randazza and Piccionelli took a more subtle approach and agreed that if .XXX is approved by ICANN, the best thing is to perhaps come up with some kind of compromise and to at least get the two sides talking.

The panel did agree on one thing and that is anyone involved in adult should retain a lawyer who knows about their particular area and always get a second opinion.