Archive for October, 2019

17
Oct
19

Woodhull Panel – FOSTA & Internet Censorship

The Woodhull Freedom Foundation is the lead Plaintiff in the lawsuit challenging FOSTA. Its legal challenge started in the spring of 2018, when the organization began to struggle with its online promotion of events involving sex workers at its annual Sexual Freedom Summit. The law broadly prohibits the promotion or facilitation of consensual sex work using the Internet.  Facilitation generally means; “to make easier.”  Woodhull questioned how it could promote its 2018 Summit events involving sex worker advocacy and harm reduction, or publish the biographies of its sex worker presenters, without running afoul of the new law. Was it promoting sex work, or making sex work easier? FOSTA’s failure to define the words “promote” or “facilitate” or even “prostitution” made it difficult for any reasonable person to know where the line would be drawn. That struggle resulted in the lawsuit challenging FOSTA for violating the First and Fifth Amendments to the Constitution.

Since FOSTA was adopted, countless websites have gone dark and sexual content has been purged from large online platform providers. Sex workers now face increased danger, and law enforcement has lost its access to online information to prosecute traffickers. Woodhull, and the other Plaintiffs, have kept fighting. The appeal of the district court’s decision dismissing the case, based on lack of standing, was heard by the United States Circuit Court, D.C. Circuit, on September 20, 2019. AVN’s take on the Oral Argument can be found here.

Woodhull has continued to conduct its Summit, despite FOSTA. In 2019, it partnered with the Sex Workers Outreach Project (SWOP) in its efforts to support the sex worker community as Woodhull pursues its mission of affirming sexual freedom as a human right. The 2019 Summit included a panel specifically addressing the impacts of FOSTA – both on sex workers specifically, and Internet freedom generally. The panel included Emma Llansó, Director of the Center for Democracy and Technology’s (CDT) Free Expression Project, Ronald London, attorney with Davis Wright Tremaine, and the author, Lawrence Walters, of Walters Law Group.

The panelists are all involved in the fight against FOSTA in some form. CDT has been a staunch advocate for online freedom and helped sound the alarm bells when the FOSTA and SESTA bills were working their way through Congress. London, along with his partner Bob Corn-Revere, are counsel of record in the Woodhull v. United States, along with Walters and attorneys with the Electronic Frontier Foundation (EFF).

The FOSTA panel lasted over 90 minutes and provided a full update on how FOSTA has harmed sex workers, hampered law enforcement, and stifled online innovation. Llansó described how the FOSTA “monster” came to be, and how it dramatically changed existing federal law that provided immunity for interactive computer services which host third party content. Walters and London discussed the status of the lawsuit, and the potential outcomes. Ultimately, the case may be headed for a U.S. Supreme Court appeal.

The panel delved into the numerous myths that fueled the adoption of FOSTA, such as:

  • Criminalization of prostitution works
  • All prostitution is sexual slavery
  • Sex trafficking is fueled by a proliferation of pornography
  • Decriminalization is harmful

Each of these myths have been debunked by facts, studies, or experiences in other countries that have decriminalized prostitution. The more criminalized sex work is, the more violence and exploitation sex workers face – by police, customers, and others. Consensual sex work is very different activity from sex trafficking, and cannot be effectively treated by one-size-fits-all laws like FOSTA.  As discussed during the panel, sex trafficking is not caused by pornography, despite persistent efforts to conflate the concepts. A similar strategy has been used by censors to link illegal child pornography with constitutionally-protected adult media. Jurisdictions that have decriminalized prostitution have seen fewer negative health and safety consequences for sex workers.

The damage already caused by FOSTA highlights the importance of Woodhull’s lawsuit. London pointed out how civil claimants are already arguing that FOSTA allows website operators to be sued for any state law violations that are consistent with FOSTA’s prohibitions. This greatly expands the potential legal exposure facing Internet platforms, and results in more censorship of erotic speech. Fortunately, Woodhull has many allies in its fight. Additional Plaintiffs in the suit include The Internet Archive; Alex Andrews / SWOP Orlando, Human Rights Watch, and Eric Koszyk (a licensed massage therapist who lost his opportunity to advertise on craigslist.org due to FOSTA).  Numerous other groups have filed briefs in support of the challenge at the appellate level, including CDT, Reddit, the Free Speech Coalition, Decriminalize Sex Work, the Institute for Free Speech, and the National Coalition for Sexual Freedom. London pointed out that some groups also filed briefs in support of the Government, such as a coalition of individual states. However, their brief actually supported the Plaintiffs’ arguments since they illuminated the credible threat of prosecution by states anxiously awaiting the opportunity to broadly enforce FOSTA against website operators.

The panelists fielded many questions from the audience on how they should operate in a post-FOSTA world, and the potential results of the litigation. Some wanted to know more details about the lawsuit or potential additional challenges to FOSTA. Some were curious about new threats to banking relationships or mandatory age verification. The panelists warned that other bills, modeled after FOSTA, are currently pending which would take away even more protection for online service providers and inhibit speech in other areas. Overall, the well-attended panel offered a realistic assessment of how FOSTA changed the internet for anyone operating in the adult or sex worker industries and provided a beacon of hope for change through the courts.

The full session can be viewed here: https://youtu.be/bJ-j9KJNr0M

 

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. The firm represents clients involved in all aspects of the adult industry. Nothing in this article is intended as legal advice.

17
Oct
19

What’s In A Name?

Adult business operators often struggle with the legal complexities of trademarks, trade names, fictitious names, and corporate names. This is particularly true for amateur performers, producers, or distributors who have operated a small business under their own personal name but want to consider doing business under a corporate or brand name. Let’s try to sort through some of the confusion.

Personal Names

Anyone can operate a business individually, using their personal name and social security number as their taxpayer identification number. This is known as a sole proprietorship. This simple business format is user-friendly but provides no legal protection from claims against the business, and offers no anonymity for the owner.  If a personal name is used as a business brand, it can be registered as a trademark. More about trademarks later. But actors, authors, sports figures, and other celebrities frequently register their personal names as trademarks, in the class of services for which the name is being used.

Fictitious Names

An individual can operate a business under a fictitious name, also known as a “d/b/a” which stands for “doing business as”. A fictitious name is also known as a “trade name”. Most states require a business to register a fictitious name before using it to engage in commerce. Registration can occur at the state or local level – sometimes both. In some states, it is a criminal offense to use a fictitious name without a registration. The idea is to protect the public by allowing people to look up the name of the actual owner of a fictitious business name. Registering a fictitious name does not provide any legal protection for the owner of the business and does not automatically grant any intellectual property rights to the name. In other words, someone else can use the same fictitious name for a separate business, and your registration will not give you any rights to stop them. Both individuals and companies can register fictitious names.  Theoretically, any stage name or website name is a fictitious name of the individual or company behind the operation, and registration of these names should be considered as an element of basic legal compliance.

Corporate Names

Setting up a corporation or limited liability company (LLC) should be considered by any business, no matter how large or small. Conducting business through a corporate entity provides some protection against claims or debts of the company. Incorporation is often viewed as a form of cheap insurance. A corporation is considered a separate legal “person” from its owner(s) and has perpetual existence. A corporation can also obtain its own taxpayer identification number, and hold bank accounts or other property in its own name. The incorporation process is not complicated, but maintaining the corporate formalities can be challenging for small business operators who are not familiar with the process. All corporate entities should have a corporate book, records of ownership, and minutes of corporate meetings. Corporations should likewise have bylaws and shareholder agreements, while LLC’s should have operating agreements. These documents will describe how the owners are compensated, how shares are issued, and how disputes are resolved. The absence of a shareholder or operating agreement can result in significant problems, such as third parties claiming to be owners. In some instances, failure to observe the corporate formalities can also result in the individual owners becoming responsible for corporate debts or liabilities.

Corporations also provide some level of anonymity for the owners, since corporate ownership is typically not a matter of public record. The information necessary to set up a corporation varies from state to state, with some states requiring very little public information about those involved with the business. You can select any state for incorporation, regardless of the physical location of the business. Typically, however, a corporation must appoint a registered agent who is physically located in the state of incorporation.

Your corporate name need not be your business brand name. As noted above, a corporation can register a fictitious name that represents its brand. But in some circumstances, it can also register the name as a trademark.

Trademarks

Trademark registration is an important consideration for any business. If your brand name meets certain criteria and does not conflict with the rights of third parties, you may restrict others from using the same or similar brand for your business. Protecting your brand is essential, and a trademark can often become your most valuable business asset. In the event anyone infringes on your brand name, having a registered trademark can provide an expedited path toward resolution of the dispute. Importantly, not all brand names qualify for trademark registration. Brands which are generic, or merely descriptive of the business’s products or services, typically will not be accepted for registration as trademarks. In some cases, use of a descriptive brand for a sufficient period of time will allow for trademark registration, if the mark has acquired distinctiveness in the marketplace.

Trademarks can be registered at the state level, or at the federal level with the United States Patent and Trademark Office (USPTO). In order to qualify for federal registration, the brand must be used in some form of interstate commerce. Often, businesses will wait until they are actually using a brand before applying for registration. However, the USPTO allows business owners to file a trademark application if they have a bona fide intent to use the brand in the future. Filing the application sets your priority date and allows you to prevent others from using the same or confusingly similar brand in the future, so long as you ultimately receive a trademark registration.

Trademarks can be owned by corporations or individuals. The owner of the trademark will have the power to control the use of the brand name, and the power to license that brand for use by third parties. Sexually explicit trademarks have historically been refused registration by the USPTO, but that may change depending on a decision from the U.S. Supreme Court that is expected in the near future. Many adult business operators have sought registration of explicit brand names in the hopes that the Supreme Court will clear the way for registration soon.

Conclusions

Choosing the right name and structure for your business is an important decision for any adult business operator. Your brand name represents the reputation and goodwill of your business. Some brands may conflict with the trademark rights of other operators, so careful consideration should be paid when selecting your trade name, corporate name, or trademark. After some initial legwork, you can find the perfect brand name, and protect it from infringers for the life of your business.

 

Lawrence G. Walters heads up Walters Law Group, www.firstamendment.com. Nothing in this article is intended as legal advice.