08
Jul
16

Stolen Moments – Addressing Webcam Show Piracy

Many webcam performers have experienced a new trend in online piracy – the illegal recording and publication of live webcam performances.  The “business model” is disturbingly simple:  sign up to purchase or view a live webcam performance on any number of webcam networks, use current screen capture technology to record the performance, then distribute the performances on numerous pirate websites hosted in some remote jurisdiction.  Throw in a remote proxy server for good measure, and start generating traffic to a website populated with stolen performances.  Offer a tease of the content for free, and encourage the user to download the entire performance from a file locker for a price.

The webcam performer is victimized because her content is stolen, but the webcam network is also impacted because users can watch recorded “private” performances of their favorite cam stars without paying the typical fee for live viewing.  The stage name of the performer and the brand name of the network’s website are often included in the URL’s generated by the pirate sites, thus resulting in potential trademark infringement against both parties.

So what can be done about this new brand of piracy?  The first step is to sort out who owns what. The webcam network’s Model Agreement will typically state which party retains the copyright to the performances.  Most often those rights will remain with the performer, who will provide some sort of license to the network permitting publication. That means the performer is the party that possesses the legal right to take action for copyright infringement.  Performers who retain copyrights to their performances typically cannot rely on the webcam networks to enforce those rights.  In some circumstances, the performer can authorize the network to take certain steps to enforce his or her copyrights, but not without additional agreements or assignments.  Only the proper party should attempt to take legal action against a pirate camshow site.

The most common initial response to this type of copyright infringement is transmission of a notification of infringement under the Digital Millennium Copyright Act (i.e., a “DMCA notice.”)  Importantly, a DMCA notice is only legally effective when sent to a third-party providing services to the infringer.  DMCA notices should not be sent to infringing parties, directly. The intent behind a DMCA notice is to force the online service provider (such as a host or billing company) to stop providing services to the party committing the copyright violation.  In the business model described above, the DMCA notice would properly be directed to the file locker providing the file storage and download service, not to the infringing site itself.

When pursuing the infringing party directly, the proper legal vehicle is a Cease and Desist demand (“C&D demand.”)  A C&D demand is designed to put the infringer on notice that they’ve been caught, and to demand that the infringing content be removed from circulation.  Typically, a C&D demand reserves the right to sue for damages, or seek other remedies, even if the material is promptly taken down.

Both DMCA notices and C&D demands are relatively inexpensive, and can often be effective.  While the pirate camshow sites frequently hide in jurisdictions with lax copyright enforcement policies, the operators often choose to respond to formal legal notices (sent by proper parties) rather than risk a potential lawsuit.  From their perspective, there’s plenty of other content to be stolen, so discretion is the better part of valor when faced with a valid infringement notice.

Naturally, some pirate camshow sites will refuse to respond to legal notices, and call the copyright holder’s bluff. While this can be frustrating, claimants should make sure they have identified all possible service providers for purposes of DMCA notices, including hosts, domain privacy service providers, file lockers, billing companies, proxy service providers, content delivery networks, etc.  Loss of essential services can result in quick compliance.  Equally important is thorough investigation into all relevant contact points and addresses. A legal notice sent to the correct physical address frequently gets an infringer’s attention.

For some copyright or trademark holders, the filing of a lawsuit for intellectual property theft will be the final solution.  While litigation is expensive and uncertain, permitting rampant theft of copyrighted performances is likewise unacceptable.

As the popularity of live camshows increases, so does the interest in pirating this content. Intellectual property holders are encouraged to consider their available options when addressing the newest flavor of online piracy.

11
May
16

Website Reporting Obligations under Federal Law

Introduction

Adult website operators are typically familiar with the obligations imposed by Title 18 U.S.C. § 2257 (“Section 2257”) which mandates the compilation and maintenance of certain records relating to the production of sexually explicit content.  Less well known, but equally if not more important, are the reporting obligations imposed on certain website operators under 18 U.S.C. § 2258A.  This federal statute requires “electronic communication service providers” such as hosts, forums, dating sites, tube sites, and advertising networks, to report any apparent violations of child exploitation laws, to the CyberTipline; http://www.missingkids.org/cybertipline/, operated by the National Center for Missing and Exploited Children (“NCMEC”).  The following is a summary of those reporting obligations.

 

What Violations Must Be Reported?

Qualifying service providers must report “apparent” violations of federal laws relating to child exploitation or child pornography.  No specific definition of what constitutes an apparent violation is included in the statute.  However, as discussed below, there are benefits to erring on the side of submitting a report in questionable cases.

 

When Must the Report Be Made?

The report to the CyberTipline must be made as soon as reasonably possible after the website operator obtains actual knowledge of any facts or circumstances that a violation of the relevant laws has occurred in connection with the operation of the site or online service.  While no specific time frame is included in the law, the statute contemplates prompt reporting of suspected violations.

 

What Must the Report Contain?

There are 2 types of reports that can be submitted: a public report, or a secure, private report by a registered service provider.  The registration process requires that certain information about the service provider be voluntarily submitted. The secure report permits uploading of images, and provides a receipt confirming the submission.  Service providers are encouraged by NCMEC to register and submit secure reports by submitting an email to its coordinator at espteam@ncmec.org.

The report must include certain categories of information:

  • Identifying information about the individual responsible for posting or transmitting the images, such as IP address, or email address (including any self-reported information submitted by the user).
  • Historical information about when and how the user posted the illegal content.
  • A description of how the violation was discovered by, or reported to, the service provider.
  • Geographic location information relating to the responsible user such as billing address, IP address, or zip code.
  • The suspected images themselves. Note, all “associated images” must be preserved by the service provider as well.
  • The complete communication relating to the suspected images, including any data, digital file, or other information relating to the transmission of information.

 

What Other Obligations Apply?

In addition to reporting suspected violations, the service provider must preserve the  NCMEC report for a period of 90 days, plus an additional 90 days if requested by NCMEC.  The full contents of the NCMEC report must be preserved, along with any other images that are “comingled” or “interspersed” with the suspected images.  Read broadly, this could include all images that appear on a given web page, or which are uploaded by a particular user into the user’s folder or directory.  The website operator must also take steps to keep the preserved material in a secure location, and limit access to the material by its agents or employees.  Finally, operators must permanently destroy any reported images upon the request of law enforcement.

Importantly, the statute does not impose an obligation to monitor any user or the content of any user.  Moreover, there is no obligation to affirmatively seek out potential violations of the applicable laws.  In other words, service providers are not required to become child exploitation investigators.

 

Why Should the Report be Filed?

Affected website operators might ask themselves why they should get involved in submitting reports to law enforcement, relating to their users’ activities.  The most obvious answer is because the law requires such involvement.  Failure to report suspected violations is a criminal offense which can result in the imposition of substantial fines.  Moreover, federal law provides a form of immunity from civil or criminal prosecution for the service provider, in connection with the submission of any reports to the CyberTipline.  See, 18 U.S.C. §2258B(a).  However, this legal protection can be lost if the service provider engages in any intentional misconduct, or if it acts (or fails to act) with actual malice, or reckless disregard for injury to others. §2258B(b).

Conclusion

Certain popular online business models trigger compliance obligations with a wide variety of federal statutes and regulations.  Among them are the statutes imposing reporting obligations to the CyberTipline.  Affected website operators are encouraged to educate themselves regarding the details of these requirements, to avoid inadvertent violations and to foster a cooperative relationship with agencies investigating instances of child exploitation.

29
Dec
15

Close Up the Internet and Repeal the First Amendment

You know elections are upon us when politicians start talking about wanting to “close up” the Internet, or censor Twitter and Facebook.  Throw in a couple terrorist attacks and you have the perfect storm for loss of cherished First Amendment rights.

Donald Trump’s suggestion that America should consider “closing up the Internet in some way to fight Islamic State terrorists in cyberspace” illustrates the danger lurking around the corner for any disfavored speech.  In the early days of the Internet, the U.S. government took the lead in attempting to censor ‘indecent’ online communications, by passing the “Communications Decency Act (“CDA”).” Deemed the “Great Internet Sex Panic of 1995,” politicians in that time saw adult websites as a threat to the foundations of society, so they attempted to “close up” that part of the Internet.  What remains of the CDA is now often cited as a protection of free speech (i.e., “Section 230”), but the bulk of the legislation, which prohibited indecent Internet content, was struck down by a unanimous Supreme Court in 1997.  The Court could spot that blatant censorship attempt a mile away.

Now the Senate is considering legislation that would force social media companies to monitor posts, and report any “terrorist activity” to the government.  Sen. Diane Feinstein did some investigating and found that while sites like Facebook, YouTube, and Twitter take down content in response to valid abuse reports, they do not proactively monitor their networks, or report suspected violations to the government. “I think they should,” she said at a recent Judiciary Committee hearing.  Of course, the entire legal premise on which most online service providers operate is that they are not required to monitor the content of third party posts, or scour their networks for references to potentially unlawful activity.  Imposing that kind of burden could easily bring Internet traffic to a screeching halt, given the manpower, expense, and legal risks associated with operating an online service under those conditions.

However, the government has been busy laying the groundwork for imposing the burden of monitoring and censoring online speech in numerous ways; beginning with the startling life sentence handed down against the operator of SilkRoad.com, the passage of the SAVE Act, the criminal prosecution of escort advertising networks, and the intimidation of credit card processors associated with Backpage.com (later found to be unconstitutional). Each of these actions represents an attempt to hold an online service provider responsible for third party posts or advertisements.

Some of those calling for the proverbial heads of social network operators for permitting uncensored use of their networks rely on a provision of the USA Patriot Act, which prohibits anyone from providing “material support” to a terrorist organization.  If this action is prohibited, how can Twitter get away with providing a network for distribution of jihadist propaganda? Or so the argument goes. Despite Supreme Court Justices expressing some “grave concerns” with the constitutionality of that prohibition under the First Amendment, the law was upheld in 2010.  Thus began the gradual chipping away at what used to be a clear prohibition on criminalizing political speech.

Others who are upset with an open marketplace of ideas cite to legal obligations imposed on Internet service providers to remove and report child pornography, or take down reportedly infringing material under the DMCA, as evidence the government already has the tools it needs to create a valid, online censorship regime. Each of these instances can be distinguished from the wholesale prohibition of online communications envisioned by those desperate to find a quick fix for the complicated threat of terrorism facing today’s world populace.  Child pornography falls into one of the rare, historically unprotected categories of speech, given its unique, horrific nature – and the fact that it records the criminal act of child abuse.  DMCA takedowns do not involve censoring speech by the government, but the civil enforcement of intellectual property rights by copyright holders.  The targeted material may still be protected by the First Amendment, but owned by someone with superior rights to control its distribution. Mixing all these potential ‘options’ into a big, convoluted soup encourages the talking heads and politicians to conclude that there “must be a way” to close up the Internet, and keep us safe.

Renowned enemy of the First Amendment, Eric Posner, uses the threat posed by ISIS to promote “new thinking about the limits on freedom of speech.”  His latest attack on one of civilization’s most sacred values proposes a law that would criminalize access to websites that glorify or provide encouragement for ISIS.  Aside from the fact that true jihadists would likely use encrypted communications to evade detection, and investigators would lose the ability to monitor and track threatening communications, censorship never works and often backfires.  Typically such laws call more attention to the censored speech or inadvertently silence opposition views as well. History proves that the cure for bad speech is more speech, not censorship.  While recent calls to clamp down on free speech rights have been effectively mocked by civil libertarians, the proposals are becoming too frequent for comfort. Should one of these proposals gain traction, be prepared for a demand to block some type of erotic speech that a legislator decides is too extreme for his or her tastes. That’s exactly what happened when Iraq started blocking terrorist’s speech earlier this year – the ban on pornography soon followed.

In any other time, the author would conclude this article with a calming observation that the First Amendment protects offensive and even hateful speech, and that would be the end of it. The calls for censorship would eventually be quelled by cooler heads that were well-grounded in constitutional restraint on governmental power.  But we live in a time when Yale University students are perfectly willing to sign a petition to repeal their First Amendment rights (including the right to petition). We also exist in a world of trigger warnings, safe spaces, and abundant micro-aggressions, where university professors call for some “muscle” to kick journalists out of public protests.

The First Amendment was once held sacred – particularly when it came to online communications.  The Internet was everyone’s soap box, where the speaker didn’t need big media money to get a message out. The courts acted quickly to strike down laws that conflicted with free expression rights. However, in a time when 34% of poll respondents say the First Amendment goes too far, and the same percentage have no idea what rights the First Amendment protects, the bedrock principles that have formed the basic protections for online speech are on shaky ground.  Let’s hope they survive another election cycle.

31
Mar
15

Stealing Website Terms & Policies – Not the Best Idea

The Internet has become a notorious breeding ground for poaching others’ intellectual property. While all forms of IP infringement are discouraged, one in particular can create a massive headache for Internet businesses: misappropriation of another website’s Terms, Conditions, Policies & Disclaimers; and/or more broadly, legal web documents. While many may be enticed to simply swipe another’s Terms to avoid the legal costs of having an attorney draft brand new web documents, it’s simply not worth the risk.

Initially, there is the very obvious problem that another website’s Terms likely will not apply to your business. At the broadest level, different websites operate different business models and each set of Terms is ideally drafted for only one website running a specific business model. Similarly, even if the website operations are similar, there is always the possibility that Terms lifted from another website are outdated or flawed. The site that posted the stolen terms may, itself, have lifted them from another inapplicable site, or may be relying on Terms that were drafted before important legal development occurred.  A few years is like an eon for Internet Law, and much happens in a short period of time.  Cases decided in the last year have had profound impacts on how Terms directed at consumers should be drafted and implemented.

Even if parts of the lifted Terms are up to date and relevant to your business model, certain very specific clauses could be inapplicable, causing problems in relationships with your users. For example, billing provisions, dispute resolution options, and choice of law clauses are all areas which require specific and careful review before posting within legal web documents. Using another state’s (or nation’s) laws, or consenting to be sued in another remote jurisdiction, can have disastrous consequences for your business in the event of a dispute. Even claims brought by non-users can be impacted by these venue and choice of law provisions.

There is also a danger with broadly copying and pasting another website’s legal policies when it includes the name and contact information of the original company. Often this information is buried in the “fine print” or in a copyright disclosure, and easy to miss. Aside from being a clear indication of a copyright violation, this type of wholesale copying can invalidate the entire agreement because it is formed with a completely different entity than the actual website operator. Court’s will not overlook this type of plagiarizing.

A specific issue that our firm routinely sees with legal policy theft is inadvertent copying of a DMCA notice & takedown policy, identifying someone else’s designated DMCA agent.  Posting someone else’s DMCA policy can result in a complete loss of DMCA safe harbor, and the fraudulent suggestion that someone is acting as your DMCA agent, when they are not.  This is a large problem for “while label” programs, wherein the “white labels” erroneously presume they have permission to utilize the sponsor’s Terms or web documents, but usually, that’s not the case. More importantly, even in situations where the sponsor explicitly gives permission for the use of their Terms, use of the DMCA agent listed in the sponsor’s Terms is typically not part of the deal. Absent a specific agreement by the designated DMCA agent to act on your behalf, it is not likely that DMCA notices directed to your site will be processed in accordance with federal law.  DMCA agents must file a designation with the U.S. Copyright Office listing all sites subject to the designation.  Your posting of a copied DMCA policy will not suffice to trigger safe harbor protections, or give any notice to the DMCA agent that your site should be included in a designation. This form of copyright theft has severe consequences to any online service provider, even if the copyright holder never discovers the infringement.

As noted above, being sued for copyright infringement is a significant risk of stealing another website’s Terms. Merely changing a few words here and there will not prevent the stolen Terms from being considered a derivative work, and thus still owned by the original author. Statutory damages in a copyright infringement action can be anywhere from $750 to $30,000 per work, and up to $150,000 per work for willful infringement. Each stolen document would likely be considered a separate work. Attorneys fees will often be awarded in addition to damages. Risk of litigation isn’t the only consideration, however: the public perception that comes with using a competitor’s legal work can negatively and significantly impact credibility, both with consumers and in the industry, generally.

Developing your own set of website Terms and other legal web documents is important beyond the reasons listed above. A well-drafted set of web documents creates clearly established policies for both users of the site and third parties; the latter through documents outlining Subpoena Compliance and the site’s DMCA Notice and Takedown Policy. Legal protections like Section 230 protection, DMCA safe harbor, and sometimes Section 2257 exemptions, will be impacted by proper legal terms.  Quality web documents can help outline potentially unlawful uses of the site, protect intellectual property, allocate liability, and provide important disclaimers. Finally, as noted, paying careful attention to important provisions such as choice of law, dispute resolution, and any applicable arbitration and/or mediation requirements is critical for protecting your online operation.

While an experienced Internet attorney will require compensation for drafting important legal terms, often the process of discussing these documents will lead to important modifications in internal operating procedures, as the legal consequences are evaluated.

19
Mar
15

The War on Porn Rebranded as the War on Sex Trafficking

On October 8, 2014, ThinkProgress.com declared the end to the War on Porn. The censors had lost and erotic media would live on.  One sign that the war had been lost was the fact that annual contributions to the well-known anti-erotica group, Morality in Media, had dwindled from over $1 million dollars in 2001 to just over $20,000 in 2005. By 2006, the group terminated its lobbying registration entirely. A few years later, Attorney General Eric Holder completely disbanded the Obscenity Task Force, which was formerly responsible for bringing federal obscenity prosecutions.  The Unit’s most recent misadventure, the case against John Stagliano, ended in disaster for the government, with all charges being dismissed by the court.  It seems the dawn has indeed come for the War on Porn. So is there cause for celebration?

Yes and no.  Certainly, the apparent end to active obscenity prosecutions is a victory for the First Amendment. This uncertain legal risk that plagued adult industry operators for years seems to have subsided.  But censors never change their stripes. Sex panic still sells, politically; it just needed a 21st Century face lift.  Thus “The War on Human Sex Trafficking” was born.  Who can turn their backs on helpless women and children sold into a life of servitude?  As it turns out, this is one of the few bipartisan issues left in Congress.

The War on Trafficking has become a legislative juggernaut, with numerous bills introduced this Session having some connection with trafficking.  The two most important bills are now pending in the Senate, and are designated S. 572 (the SAVE Act) and S. 178 (the Justice for Victims of Trafficking Act).  The main sponsor of the SAVE Act, Senator Kirk (R-Ill), recently introduced this bill as an amendment to S. 178, so they are presently combined.  While the SAVE Act purports to add just a few words to 18 U.S.C. s. 1591, its impact could be dramatic.  If passed, the bill would criminalize the advertising of any sexual act involving minors or coerced adults, and result in mandatory 10-15 year jail terms.  One problem: How does an online advertising network tell if an advertisement violates these prohibitions?  In the absence of face to face interaction with advertisers, is it realistic to require a website to know the age, much less the state of mind, of its advertisers?  A large part of this effort has been directed at Backpage.com, and its escort advertising activity.  If this bill is adopted, escort advertising sites will supposedly be required to identify and block any ad posted by a minor or a coerced adult.

While a last minute dispute between Republicans and Democrats, regarding a provision of the bill restricting payment for abortions, prevented the bill from near adoption in March, 2015, the bill still enjoys widespread bipartisan support. An identical House version of the SAVE Act, HR. 285, already passed that Congressional body. Should this legislation be passed into law, it could represent the biggest threat to the adult entertainment industry in modern times.

Naturally, the bill’s sponsors hope that escort advertising sites will conclude that the risk of prosecution is too high, and simply shut down.  This is an exceedingly short-sighted approach to the problem of identifying sex traffickers. Closing sites like Backpage.com will actually hurt trafficking victims. Currently, these sites represent the most significant, reliable source for law enforcement investigations into trafficking cases.  Clearwater Police Chief, Anthony Holloway, recently stated in an interview with Reason.com, that sites like Backpage.com are a valuable investigative tool for trafficking, and that if shut down, the traffickers would just go to other sites. Such “other sites” may well be located offshore, and outside of U.S. jurisdiction, yet be able to display the same ads to the same audience as U.S. based sites.  So the only real impact of forcing these sites out of business will be the loss of a quick, reliable source of information about sex traffickers.

Beyond the loss of an important investigative resource, the SAVE Act will negatively impact online innovation.  As noted by the Center for Democracy and Technology, criminalizing online advertising runs counter to the First Amendment, and the strong protections afforded to interactive computer services under Section 230 of the Communications Decency Act. Forcing network operators to screen ads and advertisers for potential trafficking activities will slow this Internet traffic to a screeching halt, for those who continue to operate in the space.  Other entrepreneurs will simply conclude that the risks are too great and avoid developing new technology and business models that would otherwise contribute to the online marketplace.

The other bill pending in Congress, S. 178, is a mammoth piece of legislation that incorporates the so-called HERO’s Act, which will funnel money into the investigation and prosecution of sex-trafficking cases at all levels.  Essentially, local prosecutors will be able to get their hands on federal money if they find sex trafficking cases to pursue.  While this may help some trafficking victims, the incentive to generate questionable investigations with the promise of a large federal dollar payoff is problematic.  It will only be a matter of time before some enterprising prosecutor will decide to test the boundaries of the First Amendment, and charge some advertising network with trafficking because a user-uploaded escort ad involved a “coerced” adult.  The problem doesn’t stop with escort advertising.  Any sex act is potentially covered under the pending legislation, such as those which routinely occur on live web cam sites.  If the web cam model happens to be performing under duress, new trafficking laws could kick in and result in mandatory 10 year prison sentences for those who advertised the services.  The same result could occur with ads for gentlemen’s clubs, if the performer engaged in a sex act and turned out to be trafficked.  The room for uncertainty is substantial.  The potential for self-censorship is massive.

Sex trafficking is one of our nation’s problems, but the size of the problem is highly debatable.  An oft-quoted statistic from a 2011 study states that over 300,000 children are “at risk” of being trafficked every year.  But that number relates to the potential victims of trafficking, not actual trafficking victims. And most “trafficking” involves forced labor, not sexual slavery.  It is also frequently argued that the Internet has become the #1 platform for advertising prostitution.  That’s hardly shocking, given that the Internet has become the #1 platform for just about all goods and services in modern times.  That’s certainly not a reason to pass laws designed to criminalize passive interactive computer services.

While the scope of the trafficking problem is difficult to identify, the powers pushing the War on Trafficking can be found with ease.  Perhaps not surprisingly, Evangelical Christians have embraced the movement, and have essentially hijacked it from its feminist roots. It has become a virtual cause célèbre in the Evangelical movement. There’s a “Shine a Light on Slavery Day” (Feb. 27, if you’re interested), prayer weekends, movies, even lipstick sold to “kiss slavery goodbye.” One Christian trafficking activist and megachurch pastor, David Platt, even tried to connect trafficking to porn, writing in his book; “Every time someone views pornography, they’re contributing to the cycle of sex slavery.”

Perhaps the most telling sign that the War on Porn has been rebranded as the War on Trafficking: Morality in Media recently announced that it was changing its name to the “National Center on Sexual Exploitation.” Perhaps those donations will start rolling in again.

17
Oct
14

Sex, Lies, & Sex Tapes

Sex, drugs & rock ‘n roll. That used to be the unofficial motto of Hollywood. And it worked. For years, the so-called scandals of celebrities in public were enough to keep tabloid headlines fresh, interesting and attractive to readers. Now though, it’s 2014: we’ve seen it all and it is no longer enough to simply report on what celebrities are doing in the public eye. A new unofficial motto has taken hold of those that fancy themselves the gatekeepers of celebrity information: sex, more sex, and leaked private media.

In recent times, not only have there been a rash of leaked photos from consumer-driven websites like 4chan, we’ve also lately seen stories of big name production labels, such as Vivid, considering the release of celebrity sex tapes. Rapper Iggy Azalea is at the center of the most recent controversy, with reports that a former boyfriend is shopping around a sex tape involving the entertainer to various media outlets including Vivid Entertainment.

Images or videos released to the public which were not originally meant for public consumption bring with them a wide variety of legal issues and pitfalls. That being said, there are four main issues in this realm which should be noted for anyone considering publishing this increasingly popular category of material.

Copyright: Initially, the person who created the media presumptively owns the copyright in the media. Sounds simple enough, right? Not exactly. This clear principle can quickly be made muddy, given the way we all create copyrightable “original works of authorship” these days. For example, consider the famous case of the Ellen DeGeneres Oscar Selfie. DeGeneres licensed use of the now widely known photograph to the Associated Press. But did she own the rights to license? It is unclear. DeGeneres is the one who got all the famous stars together, posed them, and set the scene for the photo. However, she was not the one to click the shutter button on the phone: Bradley Cooper was. The traditional presumption is that the photographer – meaning, very literally, the one who clicked the shutter button – owns the copyright and can distribute it.  Additional confusion arises when the photographer is acting at the specific request of another – particularly without a ‘work for hire’ agreement. Within the rash of leaked celebrity photos on 4chan, this principle would mean that the copyright in each of the selfies was owned by the celebrity who took the picture, providing that individual with a strong intellectual property case to go after anyone who published the images. Conversely, however, in the case of Iggy Azalea, if her former boyfriend shot the video, he would have a good argument as to ownership of the copyright in that case. That’s not the only consideration for leaked media, however…

Publicity/Privacy/Commercial Exploitation: Even if Azalea’s former boyfriend properly owns the copyright, Azalea, as the subject of the video, also maintains rights to control the publication of her personal depiction in the video. A model or subject depicted in media has a right to profit from the display of their ‘image and likeness.’ This is usually called the right of publicity; or sometimes, the right to commercial exploitation, and is separate from the copyright. If the recording was done in secret, there may be privacy rights at play as well. All of these rights would typically need to be waived by execution of a model release. If not, then the individual depicted in the video retains the rights, and can sue for violation of those rights. Naturally, with celebrity sex tapes, there typically is no model release signed before the ‘performance.’

Section 2257 Records: The elephant in the room regarding celebrity sex tapes is compliance with 18 U.S.C. § 2257.  As virtually all producers of erotic material know, Section 2257 imposes an obligation to review and compile certain performer identity and age documents prior to filming and/or publication. If those records were not created beforehand (which rarely, if ever, happens with a private sex tape or leaked content), the content is presumptively illegal to publish in the absence of accompanying records. The original producer must keep the original records, and all secondary producers (including webmaster) must keep copies of the records, along with generating their own records, such as the URL’s associated with the person depicted in the video. A notice of where the records are kept must be associated with the video, in the manner required by the statute and regulations.

Publication Risks: What happens if you publish a sex tape without 2257 records? The answer may depend on your role in the publication process. The original producer of the material, and the person responsible for initially uploading or publishing the material on a website, are clearly responsible for any non-compliance, which can include a multi-year prison sentence. So how are all these images being published on the Internet, presumably without 2257 records or model releases? Often, the content is uploaded by an anonymous customer of a ‘user generated content site’ such as a tube site, or posting forum like 4chan. The operator of the site will assert a Section 2257 exemption, designed to protect hosts and social networking sites from liability, and excuse their compliance with 2257 records maintenance obligations. The validity of the exemption depends on whether the site operator was actually involved with soliciting the sex tape upload; or in some cases, actually posting the content. If that activity can be uncovered, the site would almost certainly fail in asserting any attempted 2257 exemption. If the posting was done through a legitimate, unsolicited third party user upload, the site may be off the hook for 2257 compliance. Once the content appears online – somewhere – as user generated content, other ‘indexing sites’ link to it, categorize it and reproduce it, on a multitude of other sites; which ultimately display and drive traffic to the user-uploaded file. Section 230 immunity and DMCA safe harbor typically protect the tube sites and indexing sites from monetary liability for violation of publicity rights, privacy rights and copyrights, with respect to legitimate user uploaded or indexed content. All of this anticipates that the individuals depicted in the videos were over 18 years old when the content was created. If not, none of the exemptions, immunities or safe harbor protections will help the publishers with regard to child pornography allegations. Failure to report such content, once being made aware as website operator, is also a violation of federal law; Section 2258A.

Publishing sex tapes and leaked celebrity content is risky business, particularly in the absence of Section 2257 records or model releases. Celebrities have money and power…and lawyers. They can afford to enforce their rights, and may have enough influence to get law enforcement interested in pursuing criminal investigations. While some online service providers may be able to rely on federal law to skirt liability for the publications, any involvement in soliciting, posting or producing this category of erotic content generates significant legal risks.

Larry Walters has been advocating for the rights of the adult entertainment industry for over 20 years, and has defended numerous high profile obscenity cases for adult website operators. He operates Walters Law Group (www.FirstAmendment.com) which focuses on Internet law, First Amendment issues and intellectual property.

22
Aug
14

Viewing Rights – The Constitutional Right to View Erotic Material

What are your constitutional rights when it comes to viewing pornographic, violent or controversial material in your own home? This is a question we frequently address as First Amendment attorneys, and on which there is still some confusion in the minds of consumers.  Is there a right to view or possess pornography?  What about obscenity?  The answer to both of these questions, under the First Amendment to the United States Constitution and the Right of Privacy, is indisputably yes.

Stanley v. Georgia was a U.S. Supreme Court case in which the home of Robert Stanley, a Georgia resident, was searched by police. Stanley was previously convicted of bookmaking, and was suspected of conducting such nefarious activities again. Police had a warrant to search his home for bookmaking paraphernalia, and instead, found pornographic material in a drawer. Under Georgia law, it was a crime to possess obscene materials. Stanley was charged and convicted, and the conviction was upheld by the Supreme Court of Georgia.

That was not the end of the Stanley’s story, however. The U.S. Supreme Court overturned the conviction, and in the process made clear that all state laws criminalizing the mere possession of obscenity were invalid. In doing so, the Supreme Court noted that there is also a fundamental “right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.”  Regarding the notion that the State of Georgia could control the contents of an individual’s personal home library, the Court said this was “wholly inconsistent with the philosophy of the First Amendment.”

Out of Stanley comes the legal principle that individuals are free to possess and view pornography, even if that material is considered obscene, in their own homes. Stanley placed no specific restrictions on the content or subject matter of the materials. Individuals are free to possess extreme erotic material in their own homes, and may additionally view whatever fetish or subject area they wish.

This right is not absolute, however. The right to view pornography comes with one important limitation: the prohibition against even mere possession of underage material. In Osborne v. Ohio, the U.S. Supreme Court held that states’ prohibitions on the mere possession of child pornography are not inconsistent with the First Amendment and therefore, even private possession of child pornography is illegal. What constitutes possession, however, varies by state. Some states have court rulings or statutes saying that viewing without downloading constitutes possession, while other states require active downloading onto the hard drive to meet the possession threshold. Under federal law, “receipt” of child pornography via the internet or other interstate transmission is prohibited as well, thus triggering potential federal penalties for these acts.

Importantly for advertisers and operators of adult websites, the U.S. Supreme Court has heldthat it is also illegal to promote something as containing underage materials even if it actually includes only adult performers, pursuant to federal “pandering” laws.  Importantly for viewers, anything that is suggested to be underage material may actually contain such material, so it would therefore be best not to access such materials at all. Additionally, “morphed” or “photoshopped” images, containing the bodies of adults but the heads or faces of minors, have been the subject of recent and conflicting court decisions.  Nonetheless, consumers are warned to avoid this content as well, given the potential risks.           

Aside from the possession of underage materials, what is legal to view in your own home is a large category and includes exceedingly controversial content; such as images of violence, animal cruelty, and even “virtual” underage images, videos, cartoons or drawings. For violent images, there is interestingly no limit to the amount of simulated or real violence that can be viewed, as obscenity laws only apply to sexually-oriented materials. Although extremely controversial or violent materials may be legal to view, one must make his or her own personal decision whether to support or endorse content depicting self-harm or individuals being exploited. Another important point for viewers to note is that downloading a video depicting a real crime of violence may place you in the position of possessing relevant evidence, and subsequently destroying such evidence may, itself, be a crime.

Excepting the possession of underage materials, as noted above, individuals are free to view and possess a wide variety of violent and erotic content in their own homes, without fear of criminal prosecution.  The First Amendment needs sufficient “breathing room” to survive, and part of that is tolerating the private possession of material that might be illegal in other contexts, like obscenity.   However, with the widespread use of smart phones to create a diverse amount of both erotic and violent material, substantial questions remain regarding the legality of “producing” images that might be perfectly legal to possess. 

Larry Walters has been on the forefront of defending the adult entertainment industry for over 20 years, and has defended numerous high profile obscenity cases for adult site webmasters. He operates Walters Law Group (www.FirstAmendment.com) which focuses on Internet law, First Amendment issues and intellectual property.