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.

Don’t Lose Your Designated DMCA Agent

On December 1, 2016, the U.S. Copyright Office went live with its new DMCA Agent database, and revamped the procedures for designating an agent for receipt of copyright infringement notices. For any reader who does not know about the benefits of designating a DMCA Agent, or which sites should take advantage of this procedure, the author’s previous article covering those topics can be found here: http://www.firstamendment.com/dmca-agent/. This article focuses on the recent changes to the procedures and the consequences of failing to comply with the new requirements for designating a DMCA Agent.

First, and most importantly, all website operators or online service providers (“Service Providers”) who might want to claim DMCA safe harbor defenses relating to user-generated content must designate a DMCA Agent using the new automated filing system (“New System”) by December 31, 2017. This includes anyone who has already designated a DMCA Agent in the old, manual filing system (“Old System”) which ceased accepting new filings as of December 1, 2016. Failure to designate an agent in the New System by the deadline (even if you already filed a Designation in the Old System) means your business is left without a DMCA Agent, and without any legal basis for claiming safe harbor protection in response to a copyright infringement claim. Instructions about how to use the New System, and the phasing out of the Old System, can be found here: https://www.copyright.gov/dmca-directory/

Why are they doing this? Supposedly, it comes down to efficiency and accuracy of the database records. The new automated, online agent designation system is superior to the Old System, since submission of the DMCA Agent information to the Copyright Office, and payment of the fee, now take place electronically – and rather quickly. Requiring updated information and renewals will keep the information contained in the Designations more current and accurate – more about that later.

With the Old System, anyone seeking to designate an agent would need to fill out a .pdf form containing all the contact information and associated domain names, which would be sent to the Copyright Office – along with a paper check – and then scanned into the database by a human being who would then manually associate the Service Provider’s corporate name with any and all domains, mobile applications, or other “alternative names” used by the Service Provider in business. That information would be uploaded into an antiquated database with limited search capabilities.

Filing a Designation in the Old System would often take weeks, and the online database was littered with errors given its reliance on human data input. Domains would often be misspelled, overlooked, and/or duplicated. Each posting would need to be carefully reviewed by the Service Provider (or its attorney) for quality control, and errors would often take weeks (or months) to fix. In fairness to the governmental employee previously responsible for overseeing the Old System, she was given a virtually impossible task, with outdated technology and minimal support staff. That person is no longer with the U.S. Copyright Office, and given the automated nature of the New System, it appears that no individual will be responsible for overseeing it.

The Old System was actually being phased out months before the New System went online in December, 2016. Widespread reports have indicated that Designations of Agent sent to the U.S. Copyright Office in the months leading up to the launch of the New System have been uniformly ignored, and not posted in any database. Notably, the filing fee checks were cashed by the government, but many Designations have not been processed or posted online. This may result in some dramatic consequences for any Service Providers who believe they have submitted valid Designations during this ‘doughnut hole’ between the end of the Old System, and the launch of the New System. If you recently filed a Designation in the Old System database, but it does not appear in this database: https://www.copyright.gov/onlinesp/list/a_agents.html, it may be gone for good. The best solution is to immediately file a fresh Designation in the New System, and confirm that the information is posted here; https://dmca.copyright.gov/osp/search.html?key=exposedonth.net&action=search. Any Designation submitted to the Old System will become invalid anyway, as of December 31, 2017, so a new Designation submitted in the automated system will be required by the end of the year for all Service Providers. Instead of wasting time trying to track down the status of a Designation filed in the Old System, simply file one in the New System and move on.

The one piece of good news in all of this chaos is that the filing fee for submitting Designations has gone down from a minimum fee of $135 to a flat fee of $6. That’s a substantial drop, but reflects the lack of any real human involvement in the process. The bad news is that Designations are no longer permanent like they were in the Old System. Again, all Old System Designations will expire on December 31, 2017. All New System Designations must be renewed every 3 years by filing a renewed Designation. If you amend a Designation on file in the New System, the 3 year renewal period starts over. Apparently, the U.S. Copyright Office will send out reminders of any impending renewal deadline to the email address of record, but separate calendaring of this filing deadline by the Service Provider (or its attorney) is highly recommended. It is difficult to predict how the system will work in 3 years.

One other change in the procedures is the requirement that Service Providers submit a telephone number and email address when submitting a Designation. Previously, that information was not required. Notably, the telephone number and email address will not be posted in the database, but will be maintained in the internal records of the Copyright Office.
Some practical problems are bound to arise from this transition. As noted above, some Service Providers will understandably believe that they have a current Designation on file, but that Designation may never be posted if it was submitted in the latter part of 2016. Individuals trying to locate a Service Provider’s DMCA Agent may not understand the obligation to check two independent DMCA Agent databases – either of which could have relevant information about a Service Provider’s agent. Some Service Providers will have conflicting Designations filed in each database directory. Filing a Designation in the New System may not override or cancel out the Designations filed in the Old System. Some websites may have more than one Service Provider associated with them, according to one or the other databases. Some domains may be overlooked and not included in the new Designations, and will thus lose any safe harbor protection.

Ultimately, the confusion and inconsistencies will be corrected due to the passage of time, and the elimination of the Old System at the end of 2017. For now, it is essential for Service Providers to carefully review their Designations for accuracy and continued validity. Multiple calendaring systems should be implemented to ensure that renewal Designations are filed on a timely basis. Given the importance of correctly filing and maintaining a DMCA Agent Designation, many Service Providers chose to have an attorney act as their DMCA Agent, and oversee the process. While filing the Designation of Agent in the New System is not rocket science, attorneys tend to be meticulous with filing procedures and deadlines. Moreover, since a website’s DMCA contact form or email address is often used by third parties for a wide variety of legal notices, claims, subpoenas, search warrants, and preservation notices, a licensed attorney will be able to quickly escalate any non-routine legal correspondence, and ensure timely compliance with legal obligations. Regardless of your choice of DMCA Agent, it is essential to remain up to date on the changing legal requirements for filing and renewal of DMCA Agent Designations with the U.S. Copyright Office.

VISA Cracking Down on Shell Billing Companies with New Restrictions

There was a time not so long ago when adult website operators created “billing companies” in favorable jurisdictions, whose sole purpose was to bill customers for services provided by the operator, and remit the settled funds to the operator. The customer was typically indifferent to the identity and location of the billing company, so long as the payment went through and the products or services were delivered. However, credit card associations have become increasingly insistent that Merchants have a physical location, and be organized where business is actually conducted. Concerns with consumer protection, fraud, and money laundering have now resulted in tighter restrictions on the identification and location of Merchants’ operating companies.

In August, 2016, VISA issued a “Clarification” of its Core Rules regarding the location of Merchant Outlets. Effective in October, 2016, any Merchant Outlet involved in Electronic Commerce is required to have a Permanent Establishment through which transactions are completed. If only digital goods are sold, the Merchant must use the country where the principles of the company actually work. The Merchant must also hold a valid business license, maintain a local address, and pay applicable sales taxes. The Merchant’s address for cardholder correspondence must be clearly displayed on the checkout screen, along with various shipping and refund / cancellation policies.

Presumably, these rules prohibit website operators from simply incorporating a billing company in a jurisdiction like the United States, if the principles work in other locations. Moreover, “shell” corporations with no business license or physical address would be prohibited from serving as a Merchant’s operating company.

More recently, based on information from multiple sources inside the payment processing industry, VISA EU intends to implement new rules that are scheduled to take effect on January 31, 2017. These rules carry potentially heavy burdens for affected Merchants and Sub-merchants, as they will require companies to show a presence in their country of incorporation and to also retain at least some of their processing funds there rather than settle all those funds to another jurisdiction.

Non-compliance with these restrictions can be crippling. A first violation carries a €50,000 fine, albeit suspended until the end date of the cure period. A second violation within 12 months of the first is €100,000, with a monthly increase thereafter of €150,000 above the prior month’s accumulated penalties (e.g., at month 3; €300,000 and so forth).

The new rules can be summarized as follows:

The Merchant’s country of incorporation must be within the Acquirer’s Territory;
A majority of the Merchant’s directors must be in the Acquirer’s Territory;
The Merchant must have a valid address in its country of incorporation, within the Acquirer’s Territory; the incorporation agent’s addresses cannot be used;
The Merchant must pay corporate tax, sales tax or VAT as required by its country of incorporation (within the Acquirer’s Territory);
The Merchant must have a bank account to be used for settlement purposes in a country within the Acquirer’s Territory;
The domain name must be owned by the Merchant or a parent, sister or subsidiary of Merchant;
The Merchant must disclose its location before the customer completes the card transaction, either on the checkout screen or on a screen in the checkout sequence;
The Terms and Conditions must clearly state that the services are provided to the customer by the Merchant, and by no one else, and that all inquiries or complaints be directed to the Merchant; and
Merchants that are not compliant by January 31, 2017 can be subject to fines (see above for the fine schedule).

The increased scrutiny of cross-border transactions, along with the new VISA restrictions, may require substantial business restructuring by some website operators. Given the relatively brief window before these rules take effect, affected operators should consult with their business, accounting, and legal professionals promptly to begin compliance planning.

Stolen Moments – The Legal Options to Address Pirated Online Content

Updated August 27, 2020

Content creators are experiencing a wave of content being copied and re-shared on third party websites. Often, this stolen content is monetized by the pirate, and the original content creator receives no compensation for their hard work. This can result in drastic economic losses for mainstream social media influencers and adult entertainers alike. Some content creators are shocked to learn that intimate content intended only for specific subscribers has been widely shared and viewed by friends, family, and employers. All content creators are susceptible to piracy, whether they sell recorded content a la carte on tube and clip sites, stream live on cam sites, or offer subscriptions on fan sites.

In early 2020, more than 1.6 terabytes of images and video were illegally scraped from OnlyFans and Patreon and released to the public for free. While originally misreported as a hack or leak, there was no breach of the sites’ security systems. Instead, numerous individuals subscribed to OnlyFans and Patreon accounts, illegally screen captured the material on those accounts, and redistributed it on third party websites and social media applications. Someone then compiled those stolen materials from the third-party websites and social media applications and sorted the content by username, before releasing it all for free in one mega trove of pirated material.

This illicit business model is disturbingly simple. A pirate purchases recorded content, records a live webcam stream, or subscribes to a fan site. Using current screen capture technology, the pirate records the performance and redistributes it on a file locker, cloud drive, or social media account. Typically, these troves of pirated material are hosted in remote jurisdictions and use remote proxy servers that make it harder to track and stop the piracy. The pirate then sells access to the trove of stolen performances at a discounted rate, to incentivize users to choose the pirated content over the original source. In some cases, the pirate will even give some content away for free as a teaser to encourage further sales. Such activities are criminal under copyright law.

Piracy is not a victimless crime. The content creator is victimized when his or her content is stolen and resold without proper compensation, and the user-generated content site is victimized when potential users access the pirated content on third-party websites rather than on its paid content service. Often, both parties will also be the victim of trademark infringement, since the username of the content creator and the site’s brand name are often included in the pirate site’s URL or content titles and descriptions.

So, what can be done about this piracy? The first step is to sort out who owns what. A site’s Terms of Use or Model Agreement typically state which party retains the copyright to the recorded content and live performances. Most often those rights remain with the content creator, who will provide some sort of license permitting the site to publish the material. Thus, the content creator is the party that possesses the legal right to take action against the pirate, pirate site, cloud drive, or social media account for stealing and/or redistributing his or her content.

The most common initial response to this type of copyright infringement is transmission of a notification of infringement under the Digital Millennium Copyright Act (“DMCA”). Importantly, the DMCA puts the onus on the content creator to protect his or her work; not the site where the content was originally posted by the content creator, nor the site where the content was illegally posted by the pirate. Sites have no affirmative duty to proactively monitor for infringement; sites only have a duty to respond to properly filed reports of infringement. That means the content creator must take an active role in patrolling for pirates and reporting stolen content to the site where the content is reposted through the DMCA takedown procedures. A DMCA notice is only legally effective when it contains all the necessary information and is sent to a third party that provides services to the infringer. DMCA notices are not complicated, and various forms can be found online including the author’s QuickDMCA mobile app.

While user-generated content sites are under no obligation to monitor for infringement, many take active measures to prevent infringement on their services. All reputable sites will include a prohibition on copyright infringing activities in their Terms of Use Agreement. Many sites now implement anti-screen capturing technology to prevent copying in the first place. Adult sites often allow content creators to “location-gate” content which prevents users in selected geographic regions from accessing the content. Some adult sites even seek authorization from content creators to enforce their copyrights through in-house teams or third-party services that track copyright infringing activities and send out DMCA notices on the content creator’s behalf. Some of these services also fingerprint the performer’s content so the original leaker can be identified and pursued.

DMCA notices should not be sent directly to the infringing party. When pursuing the infringing party directly, the proper legal vehicle is known as a cease and desist or demand letter. A demand letter is designed to put the infringer on notice that they have been caught, and to demand that the infringing content be removed from circulation. Typically, a demand letter reserves the right to sue for damages or seek other remedies, even if the material is promptly taken down.

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

Naturally, some pirates 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, cloud drives and 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.

From a content creator’s standpoint, it is essential to establish a reputation for enforcing copyrights. Pirating stolen content is a volume business, and dealing with infringement demands consumes resources that would otherwise be devoted to furthering the pirates’ illegal enterprise. Content creators can make themselves a less attractive target for pirates by holding infringers accountable.

As the content creation continues to become a more profitable enterprise, so does the interest in pirating content. Intellectual property holders are encouraged to consider their available options when addressing the newest flavor of online piracy.

Lawrence Walters heads up Walters Law Group and has advocated for the interests of the adult entertainment community for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com, or on social media @walterslawgroup.

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.

Witnessing Transformation – Performers into Producers

The beginning of a new year in the adult entertainment industry is always filled with excitement, trade shows, and hopes for success in the year ahead. Now is also the time when the industry tries to identify upcoming trends in production and distribution of erotic content. Fresh in the minds of many performers and producers are the battles over condom laws, and production moratoria resulting from STD outbreaks. This, combined with advances in technology and plummeting DVD sales, has encouraged many performers to explore alternative forms of erotic entertainment to fill the gaps between shoots. Some choose escorting or headlining at strip clubs. But many others have turned to lucrative live webcam performances and custom video-production.

The effect of these erotic alternatives has been to cut out the middlemen; i.e., the talent agencies, producers, and photographers. All that’s required is a webcam, a good broadband connection, and a knack for turning on your target audience. Many webcam platforms and escort advertising networks allow the performer to take control of his or her content production and therefore, directly profit from the work. With a little creativity and work ethic, some performers have found that webcam performances or custom, amateur videos can be even more lucrative than professional porn shoots. The new middleman is the webcam platform provider or the clips sales studio.

Interestingly, as technology fosters a more one-on-one interaction, the tastes of typical erotica consumers have evolved as well. Why lust after the unattainable blonde bombshell, when that webcam performer with the ‘girl next door’ look might actually be the girl next door? The evolution of technology has allowed the performer to create, market, and distribute their material, all the while inviting customers into their reality. The average porn consumer now wants to know things like what their favorite performer had for breakfast, how they get dressed in the morning, and their plans for the evening. Call it a byproduct of a reality TV-obsessed culture, or just living in the age of social networking; all the world’s a stage and performers are more than willing to share the intimate details of their lives with customers. Ten years ago, an autographed DVD might have been a prized possession for a devoted fan. Now, last night’s panties are up for grabs – for the right price. Some performers may even go the extra mile and engage in intimate contact with fans on camera, as a promotional tool. The popularity of this type of interactive sex and performer/fan dynamic was even the focus of HBO’s premiere of SEX/NOW; the network’s reboot of Real Sex.

So what does this mean for the performer now turned producer of his or her own material? Most importantly, all of the legal obligations that used to be handled by the producer, photographer, talent agent or other intermediary now fall squarely on the performer. These legal concerns include Section 2257 records keeping compliance, content clearance, licensing of rights, copyright registration, fair use concerns and trademark issues. Can I show that painting in the background of my cam shot? Will the RIAA come after me if I play music during my cam show? Just because technology allows a seamless transition from performer to producer, does not necessarily mean that the law does the same.

Most cam performers are unaccustomed to dealing with these technical issues and mundane legal obligations – particularly if they have relied on professional producers to handle such matters in the past. In some ways, we’re all in the same boat. Anyone who posts a comment on Facebook, or a review on Amazon, is a worldwide publisher. Anyone who uploads a picture to a blog or forum is a media producer. That power triggers significant legal obligations. Issues like defamation, fair use, and commercial exploitation used to be the exclusive province of powerful media stakeholders like the New York Times or NBC. Now, these issues impact anyone with a smart phone or social networking account. Add on the additional layer of legal regulation imposed on erotic content, and performers can often become overwhelmed with compliance issues. With industry-specific devices and applications expressly designed to simplify the process of production and publication, technology can help ease the burden, but only to an extent. Autonomy requires proactive measures. If performers wish to capitalize on self-production trends and continue forging virtual relationships with their fan base, the keys to success are education and preventative solutions. The performer turned producer must learn to recognize the legal issues before they become legal problems.

Lawrence G. Walters heads up Walters Law Group, which has advocated for the adult entertainment industry and Free Speech issues for 25 years. Nothing contained in this post is intended as legal advice.

Dangerous Intersections

Can a webcam model also be a paid escort and an active member of a “hookup” dating site? Naturally, the answer is “yes,” but at what costs? Blurring the lines between these adult-themed user categories creates an uncharted hybrid of legal exposure for both the individual model/escort and those operating the associated websites. However, more and more frequently we’re seeing this sort of crossover in the live webcam, escort, and casual dating industries. Historically, escort sites have operated on the legal assumption that their advertisers do not engage in sexual activity for hire, but simply offer paid companionship services. Live webcam operators routinely engage in sexual activity on cam, but are typically prohibited from any “real world” meetings with users, so as to avoid concerns with prostitution and solicitation. Finally, adult dating sites have avoided prostitution-related issues based on the fact that they merely serve as a forum for social interaction, and should any sexual activity occur between users, it is not in exchange for money or anything of value. However, when the same individual acts as a webcam performer, an escort, and a hookup site user, these important legal distinctions and assumptions can start to break down.

Importantly, no law prohibits an escort from having a normal, romantic dating life, complete with sexual activity. Similarly, live webcam models are not legally prohibited from offering companionship escort services, or submitting profiles to casual dating sites in search of an occasional tryst. The legal danger arises in the not-so-rare scenario, linking all of these activities together in some way. For example, escorts who provide sexually explicit performances via webcam must be careful to separate any discussion of escort activities or reference to online escort profiles, to avoid sending the wrong message to users. Without clearly distinguishing between webcam and escorting activities, the government will likely argue that any explicit webcam activity is indicative of the services the model might provide when acting as a paid escort. Whether such argument would be successful in a court of law is another matter, but the risk exists. Escorts should be similarly cautious when linking to any dating site profiles that reference sexual activity, so as to avoid conveying any misconception regarding the limited, non-sexual nature of the activities that the escort is willing to engage in during a paid session.

While compelling legal arguments can be made in support of the legality of live webcam sites, escort sites, and hookup sites, those legal arguments can be negatively impacted by linking such activities together in some manner. In a perfect world, escorts would never engage in sexual activity, webcam models would never meet users offline, and adult dating site participants would never be compensated for anything having to do with erotic interaction. Unfortunately, however, reality is messy. Escorts and webcam models are entitled to a healthy sex life, like anyone else. But as the escort, webcam, and adult dating business models become more popular and profitable, site operators will be forced to make difficult but important decisions regarding the extent to which any co-mingling of activity will be permitted or referenced on the site.

In the immortal words of The Offspring: “You gotta keep ’em separated.” But with many operators permitting posting of user generated content with limited or no pre-publication review, along with real-time social network feeds, the ability of a site operator to control the intersection of these three areas of online adult entertainment can be challenging. That said, pre-publication review of user posts/profiles creates its own set of complications, and may negatively impact the legal protections afforded to online service providers under federal statutes like Section 230, the DMCA, and Section 2257. Thus, actively attempting to control linkage of these various activities could impact the site operator’s legal defenses to claims arising from the publication of this third-party content. Coherent operating policies should be adopted in connection with the publication of any such material, taking into consideration all of the factors. However, given the serious legal consequences attached to the promotion of sexual activity for hire in the United States, site operators, escorts, and performers should be forewarned regarding these dangerous intersections.

Update: The passage of FOSTA in April, 2018 has significantly impacted the legal issues addressed in this post.