Archive Page 3

19
May
14

Byte-Sexual: Recognizing the evolving relationships with our electronic devices

Does the virtual assistant on your smartphone just “get you”? For many smart phone users, interacting with a natural speech-recognizing, intelligent, digital assistant – ever-present on their devices – has become a way of life. It was impossible to imagine just a few years ago that we would become a society dependent on our bots, for everything from driving to a place we’ve never been to seeking out the latest movie reviews.  Perhaps predictably, some individuals prefer interacting with artificial intelligence over human beings.  Others have even developed ‘feelings’ for their digital devices.  Yes, there is even a name for such a fetish: mechanophilia.

For the past several years, the popular online dating website Match.com has been defending a lawsuit alleging that the company utilizes fake user profiles in order to encourage real members to renew their subscriptions. The suit also claims that Match does not adequately vet their profiles, and that the site may be filled with hundreds of profiles that are inactive or scams.

The concept of interacting with a ‘bot’ or artificial intelligence is not new.  Many of us have clicked a ‘live chat’ help button, only to quickly realize that we were ‘speaking’ with a computer program designed to help resolve our issue before a paid employee was required to spend time figuring it out.  But the technology driving modern artificial intelligence like Apple’s Siri is astounding – and only getting better.  Soon it may be difficult to discern the difference between live chat with a human being as opposed to a programmed bot.  For website users seeking purely online interaction or flirtation, the distinction may be unimportant.

The use of ‘virtual’ or ‘fantasy’ profiles is not new (or unique) to the online dating world, but recently the government has begun to question whether this practice is “fair” or “deceptive.”    But is there anything inherently ‘wrong’ with individuals flirting with bots or artificial intelligence?  Is it possible that some socially awkward or shy individuals may actually prefer virtual relationships rather than the thought of real human interaction?

Director Spike Jonze recently released his film Her,” staring Joaquin Phoenix and Scarlett Johansson, about a man who falls in love with his operating system. Eventually, the OS, who goes by “Samantha,” tells the main character, Theodore, that she must leave (along with all the other operating systems). The implication is that the incredible number of relationships she was having with humans became too much for her and that she and the other systems no longer wanted to be among humans.

The question seemingly posed in the film was why any human would choose interaction with a bot over interaction with another human. A more relevant question might be:  must we question why?

Many of the online dating websites using virtual profiles do so with full consumer disclosure, including statements on landing pages, in user agreements, and through distinct labels placed on the profiles and any messages they may send. Despite the disclosures, millions of individuals willingly interact with these programs, and apparently enjoy the process.  The role of the government in regulating, or even prohibiting, this form of entertainment must be questioned.

This issue has increasingly made headlines.  Just this month, a man petitioned the State of Florida to allow him to lawfully wed his laptop computer. In the case of Chris Sevier, the laptop wasn’t exactly his original object: His computer was filled with porn and due to this, he claims he “fell in love” with his computer and began “preferring having sex” with it over living persons. Sevier, in fact, argued that his “love” for his computer should be validly recognized by the court. While an extreme and perhaps humorous example, this case is illustrative of a trend on the horizon that can no longer be ignored: People are developing relationships with their digital devices and programs.

Maitresse Madeline, a fetish webcam model, has also spoken out about this very issue. Earlier this year, a man paid $42,000 for a single webcam session with her. Madeline believes that this exorbitant sum can be explained by the fact that individuals are actually paying for the virtual relationship, not paying in spite of it. According to CNET, Madeline told Kinky.com, “They’re often paying for the ambiguity that a Webcam relationship can create and that relationship over Webcam is, essentially, their fetish.”  Sometimes, it seems, virtual relationships on the Internet are exactly the experience users seek. Madeline went on; “They often want to be whoever they can dream up over the Internet and prefer to only have a relationship online.”

This new world of virtual love has already been alluded to within the confines of the law. Michael Froomkin, a law professor at the University Miami, leads an annual conference called We Robot,” where the goal is simply to get people thinking about the legal implications of a world with robots in it. According to Froomkin, it’s not unusual for technology to get ahead of the law.  “You design stuff to make it work and you don’t think a lot about the legal and social consequences,” Froomkin told NPR. “So by the time the lawyers get in the room, the standards are already baked and the stuff is already deployed.”

Froomkin’s point is a valid one and has played out repeatedly, as the law lags behind technology. Although we may be years off from a fully functional, human-like bot with a deeply developed personality like “Samantha,” we do currently live in the world of Siri’s and virtual profiles. The future of bots may not be here just yet, but who’s to judge how humans should be permitted to interact with the bots of their choice? The one aspect that distinguishes humans from bots is free will.  As creatures born with free will, should we not have the choice to interact with, and be entertained by, our digital creations?

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07
May
14

Censorship by Money: Snuffing Out Adult Entertainment by Denial of Banking Services

Adult film stars are reportedly having their bank accounts systematically closed by JP Morgan Chase bank, for no other reason than their connection with porn. According to industry publications and more directly, tweets from adult film performers, Chase has been busy sending letters to hundreds of performers, arbitrarily closing their accounts with the financial institution. One actress, Teagan Presley, attempted to open another account at Bank of America after her termination at Chase but was immediately denied.   Our law firm has received numerous similar stories of account closures or denial of banking services.

This is not the first time financial institutions have targeted the adult industry. Last year, adult performer Chanel Preston reported being denied a loan from City National Bank in Los Angeles due to her status in the adult industry. Earlier that month, industry producer Marc L. Greenberg was also denied a loan from Chase on what the bank called “moral” grounds. Years ago, PayPal turned its back on the adult industry, and refused to process payments for most adult-oriented products and services. More recently, blogs have noted that online payment processors such as Paypal, along with WePay, have ramped up their hostility towards erotica, by shutting down accounts of bloggers involved in merely publishing content of a sexually-oriented nature.

In response to these discriminatory banking activities, a popular Change.org petition has been created, demanding that Chase reverse these decisions.  The public pressure on Chase previously caused the bank to reverse its decision on the denial of payment processing services, through its subsidiary, Paymentech, to a condom sales company who challenged the action.  The outrage felt by adult industry performers and publishers is certainly justified, but is the activity illegal?  Certainly, private banks can do business with whomever they choose, right?  That’s partially true, but there’s more to the story.  Initially, there are some restrictions imposed on the banking and financial community when it comes to illegal discrimination.  For example, banks cannot systematically deny loans and other services to disadvantaged minorities, without running afoul of federal law.

However, the stunning truth is that these account closures appear to be motivated by none other than the U.S. Department of Justice (DOJ), which created a leaked program dubbed “Operation Choke Point” designed to pressure banks into denying service to certain disfavored industries including “pornography.”  Vice News notes that megabanks and other financial institutions, like Chase, are responding to this pressure by closing adult performers’ accounts, and denying services to other adult businesses. The banking industry, itself, seems to be uncomfortable with this governmental overarch into the financial sector. American Bankers Association CEO Frank Keating wrote a Wall Street Journal op-ed noting that the banks may have no real say in the issue, since the choices are either to comply or get slammed with a penalty. William Isaac, the former chairman of the FDIC has even called Operation Choke Point “way out of control.”

The government’s efforts in applying thumb screws to federally-regulated banks in order to snuff out erotic businesses engaged in First Amendment-protected entertainment constitutes censorship – pure and simple. Instead of falling into the realm of discretionary private business decisions that would ordinarily be protected from legal liability, denial of banking to adult industry participants at the behest of the DOJ likely violates federal civil rights conspiracy laws, including 42 U.S.C. § 1985.  This infrequently-invoked federal statute prohibits two or more individuals (or government actors) from conspiring to deprive a person’s civil rights or equal protection under the law.  While the statute has primarily been used in the context of racial discrimination, it could well provide a legal vehicle for claims against banks and others who have conspired with the DOJ to discriminate against adult performers based solely on their participation in erotic expression.  This sort of retaliation against citizens for participating in constitutionally-protected activity is intolerable, if not illegal.  The idea that our government would use the full force and intimidation of the Department of Justice to pressure banks (who are now largely indebted to the feds for bailing them out in 2008) into terminating customers it finds politically advantageous, represents a new low in governmental censorship.

Restricting the ability to access fundamental banking services can spell disaster for any business, and the DOJ presumably knows this.  In fact, the author predicted this sort of governmental interference in the financial system as a means to impose censorship of erotica as far back as 2002, in the article entitled “A Chokehold on the Gatekeepers.”  Cut off the ability to move money, and the business dries up.

Far from achieving its perhaps original purpose of curbing money laundering and other illegal activities, Operation Choke Point has become a means for the federal government to use banks to do its own dirty work of censoring adult businesses – something it could not do directly, thanks to the First Amendment.  While affected performers and businesses may suffer in the long term, the continued popularity of digital currencies like Bitcoin and Litecoin may prove to be an important alternative for the adult industry to stay in business.  Already, it has been reported that the affected businesses are flocking to Bitcoin to avoid the banking problems. While accepting Bitcoin as a payment method has inherent risks, and no one alternative currency is the perfect solution, this is another example of the Internet routing around censorship.  So long as creative solutions are considered by the affected industries, the banks will lose some of their ability to control the content of entertainment and free expression.

16
Apr
14

Isaacs Obscenity Case & Life Without Miller

In a not-so-surprising, albeit disappointing, decision affecting the adult entertainment industry, the 9th Circuit Court of Appeals recently upheld the obscenity conviction of fetish producer, Ira Isaacs. Isaacs was originally charged with violating federal obscenity statutes in 2007, after the distribution of several of his fetish films via U.S. mail.  Isaacs’s 2008 trial was placed on hold and eventually resulted in a mistrial, amid judicial controversy.  Judge Alex Kozinski, who presided over the obscenity prosecution, recused himself within days of commencing the trial, after it was discovered that the Judge had been maintaining a personal humor website exhibiting sexually explicit images.  After another attempt to try the case in 2011 was delayed when prosecutors added more charges, the Isaacs case eventually went to a full trial in March of 2012. For a second time, however, a mistrial was declared after jurors deadlocked on the verdict, 10-2 in favor of the government. The case was tried for a third time in April of 2012, which resulted in conviction and is the basis for the recent appeal.

In general, the Obama administration has been decidedly less interested in obscenity prosecutions than was its Republican predecessor. Since 2009, the administration’s prosecutors have tried only two adult obscenity cases, in contrast to the volumes of obscenity prosecutions that took place under President George W. Bush. Notably, Obama’s Department of Justice has not initiated any of its own obscenity prosecutions, but merely followed through with pending cases initially filed by the prior administration.

Isaacs’ most recent, unsuccessful appeal relied more on procedural due process arguments, as opposed to disputing his guilt of violating obscenity laws.  The numerous due process claims were rooted in allegations of uncertainty directly related to the Miller Test; specifically, the concept of “prurient interest” as set out in the first prong of the test. According to the ruling, the District Court adopted a proposed jury instruction defining an “appeal to ‘prurient interest” as “an appeal to a morbid, degrading, and unhealthy interest in sex.” After a question was posed by a juror, the Court revised the instruction to read “morbid, degrading or unhealthy.” Isaacs argued that the change “undermined the credibility of his lawyer,” as the attorney, in closing argument, referred to the original instruction. The District Court rejected this contention, finding that the attorney had in fact used both formulations of the instruction during argument so it was “unclear how the revision might have implied to the jury that Isaacs misled it as to applicable law.” Further, the District Court noted that while Isaacs argued that it was error for the Court to correct the instruction, there was an obligation on the Court to clarify issues for the jury, so that they did not abuse their discretion in doing so.

The 1973 case Miller v. California established the standard that is still used today for what defines obscenity. The Miller test, as it is known, has three essential prongs:

  1. Whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole appeals to the prurient interest
  2. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law and
  3. Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value

Miller has been a source of controversy and debate in the adult industry, since its inception.  The difficulty with the average juror understanding and applying the inherently vague terms of the Miller test can produce unpredictable results.  Unfortunately for Isaacs, the odds were against him from the beginning, given the nature of the content at issue.  Scat material has typically been some of the most difficult to defend, and explain to juries who tend to be shocked when exposed to the content.  While some fetish material has survived obscenity prosecution, this case resulted in a conviction, and now an affirmance on appeal.

Any time an adult industry participant is convicted of obscenity, discussions ensue regarding the continued viability of the Miller test in today’s world, and whether the industry should support a constitutional challenge to the test.  Given the Supreme Court’s repeated validation of the Miller test for obscenity, even in recent years, it is unlikely to be changed any time soon. But even if the Court was inclined to replace the current obscenity test, the question becomes: With what? Outright abandonment of the well-entrenched concept of obscenity laws is an unlikely result of any such case brought to the Supreme Court, despite some of the encouraging language in Justice Scalia’s dissent in Lawrence v. Texas.  If the challenge was based on the claim that the Miller test was insufficiently clear for common understanding, one could envision the Court handing down a crystal clear, bright-line prohibition on the depiction of specific sex acts, fetish behavior, or BDSM activity, under the guise of more clearly defining obscenity for adult content producers.  In situations like this, it is always wise to reflect on what the parties are really asking for – because they might just get it.

While Miller suffers from its vague concepts and outdated language, it has provided opportunities for creative arguments, and stunning victories.  While the test is difficult on defendants, it is equally difficult for prosecutors, who are used to well-defined criminal offenses that are not dependent on notions of societal tolerance or considerations of literary value.  Obscenity prosecutions have dwindled to a virtual halt in modern times, and the difficulty in applying the Miller test in today’s society may be partially to thank.  The “community standards” element suffers from outdated concepts of unified values and social mores based on geography, which arise from something out of Andy Griffith or Leave it to Beaver.  Today, neighbors have more in common with their Facebook friends spread out across the world than they do with their neighbor – most of whom they never met.  Fortunately, the decision in U.S. v. Kilbride recognized this inherent weakness of using local community standards, and required juries to apply national standards – at least in online obscenity prosecutions.  With tweaks like these, Miller may be more of a benefit than a hindrance to producers of erotic content, as compared to some other bright line test.  Certainly, all obscenity laws are forms of censorship, and antithetical to First Amendment values.  The Miller test does little to logically separate specific types of content from constitutionally protected speech.  However, it may be as good as it gets for the time being, even if it results in the stray, unfortunate conviction.

So what’s next for Ira Isaacs and obscenity prosecutions?  Isaacs recently petitioned the 9th Circuit Court of Appeals to rehear his case, with his lawyer arguing, among other things, that the case was not given the “special care that the First Amendment requires.” The likelihood of Isaacs’ petition for rehearing being granted, however, is slim. Assuming it is denied, the chances of the Supreme Court accepting the case are not promising, either.   However, should the Court take interest in the case, it would likely be for the sole reason of again affirming the viability of the Miller obscenity test. For Isaacs and his counsel, they have every reason to try, and should not be faulted to doing everything in their power to undo the conviction.  But in the off chance that the Supreme Court takes the case, it’s time to buckle up.  If the decision results in anything other than a re-affirmance of Miller, things could get dicey.

Perhaps the Isaacs case will be the last federal obscenity prosecution for a while, as the futility of reigning in the human desire for sexual expression begins to set in for the DOJ.  But as long as we have laws on the books that permit the government to put people in cages for making movies involving consenting adults, the guardians of liberty must remain ever-vigilant.

25
Mar
14

Keeping Your Records Clean: Segregating 2257 Records under Federal Law

Performer ID’s? Check. 2257 form? Check. Model release? Check. Throw them all into a file or load them into a database and your legal tail is covered, right? Unfortunately, XXX law is never that simple, particularly when discussing compliance with federal regulations as applied to a highly regulated industry like adult entertainment.

 One of the most common mistakes our firm has seen over the years with section 2257 compliance is the inclusion of extraneous records in the 2257 file or database. The biggest offender always seems to be the model release, which is often kept alongside the 2257 form related to an individual performer. Logic would dictate that this is the proper procedure, and that all legal documentation associated with a performer should be maintained in the same place, at the risk of getting lost if separated. But alas, logic does not always inform obligations imposed by a federal statute. The applicable statutory provision appears in 28 C.F.R. § 75.2(e) which states: 

Records required to be maintained under this part shall be segregated from all other records, shall not contain other records, and shall not be contained within any other records.  

Seems pretty clear, right? But even well-known adult entertainment lawyers have become confused on occasion, and recommend including information or other evidence in a performer’s 2257 file beyond the specific categories of material required by the statute (e.g. “dress size, phone number,” handwriting sample, etc.). The specific items that should be contained in any producer’s 2257 files and/or database, is beyond the scope of this article, and more importantly, the subject of retained legal advice. However, given the clear dictates of federal law, commonly obtained documents such as model releases, payment/compensation information, or evidence of sobriety have no place in a 2257 file. Such information could certainly be kept separately to help defend against later claims by models seeking to remove their content, but never included in a 2257 record. But any recommendation regarding keeping such information in a 2257 file is simply dangerous.

Why would the Department of Justice require this segregation of 2257 records from other performer records? Was that provision included just to make compliance more difficult and catch producers in technical violations? Although, one’s inner conspiracy theorist cannot immediately dismiss such questions – particularly when a controversial issue such as adult entertainment is the subject of the regulation- the real answer is probably less incendiary and much more practical. The fact of the matter is that FBI inspectors simply do not want to sift through mounds of irrelevant business documentation to find the federally mandated information that is pertinent to their investigation. The 2257 inspections that have occurred thus far, typically involved the use of a device to copy the relevant files and/or database in order to facilitate the inspection process and avoid unnecessary governmental review of proprietary business information. Segregating the records into a single physical or electronic file allows for easy copying and examination by authorized federal agents, without permitting review of extraneous and possibly confidential business information.

Section 2257 is not the only federal statute that requires some form of records segregation. For example, federal drug regulations mandate that medical professionals and researchers authorized to handle controlled substances, must keep separate records pertaining to such substances. Various portions of HIPAA, specifically those pertaining to the privacy regulations of the Americans with Disabilities Act and the Family & Medical Leave Act, require that employers maintain employee medical records in separate files as well. Similarly, even psychotherapy notes and such related information must be segregated from other records under HIPAA privacy rules.

Some of the separation requirements are based on privacy concerns, such as those applicable to medical records, while others are focused on easing the burdens on inspectors (i.e., § 2257 and the controlled substances regulations).    Whatever the justification, it is clear that section 2257 requires that only the specific items required by the statute be included in the 2257 file/database. Unfortunately, before the adoption of this particular regulation in 2008 (effective in 2009), many 2257 forms circulated by XXX lawyers were included in, or comprised the first page of, the performer’s model release. Often, only one signature was obtained for both the model release and 2257 form. While this practice was certainly easier on the content producers and helped prevent inadvertent loss or misplacement of portions of a model’s legal documentation, this procedure is no longer permissible.

Unlike certain “grandfathering” provisions found in section 2257, such as those exempting content (created prior to March 18, 2009) depicting the “lascivious exhibition of the genitals or pubic area” of a person, the record segregation provision was effective immediately upon adoption. As a practical matter, that means content producers who were accustomed to maintaining extraneous documents (such as model releases) in their 2257 files were immediately obligated to clean out those files and separate any 2257 material from all other business records pertaining to the performer. Often this meant manually creating a new 2257 form or database from the data in the combined forms circulating prior to the adoption of 28 C.F.R. § 75.2(e). While this may sound unnecessary, particularly in an era when section 2257 is not being actively enforced, violations of this regulation still carry a potential five year federal prison sentence. Certainly this would be harsh punishment for content producers who happen to mix some extraneous performer information in their 2257 file. Notably, physicians have been carried away in handcuffs for failing to properly maintain controlled substances records in the proper format; this stands to reason that practically speaking, there is no difference between the two.

The good news is that segregating your business records from your 2257 records actually benefits the producer. A federal agent has no authority – and frankly no business – poring over documents containing proprietary business information, such as compensation details, exclusivity obligations, non-compete provisions, STD test results, or any other category of information not specifically authorized for review without a warrant under section 2257. Remember, FBI agents can enter a producer’s place of business without notice and demand to inspect 2257 records under penalty of federal prosecution. Producers of erotic content need not expose their entire business files to review by federal agents without a warrant, when such is not required by section 2257. Attempting to segregate 2257 records from other documents while the federal agents are waiting to conduct an inspection is not practical, and could arouse suspicion in the minds of the investigators.

An argument can also be made that producers have an affirmative obligation to protect the performer’s privacy rights, thus triggering the need to weed out sensitive performer documents from such files. In an age where privacy rights are dwindling at a rapid pace, every effort should be undertaken by producers of erotic content to demonstrate what is known in the law as a “reasonable expectation of privacy.” Failing to keep 2257 files clean and separate from all other business documentation could result in a waiver of important constitutional rights to privacy if produced to federal agents during a 2257 inspection. Without a warrant, the government’s prying eyes must be limited to only those minimal categories of information that producers are obligated to make available under federal law.

28
Feb
14

2257 Abuse

Title 18, U.S.C. Section 2257 (“2257”) has long been a thorn in the side of content producers and webmasters in the adult industry, but now, the controversial statute is being utilized in ways never intended by the drafters of the legislation.  Purportedly created as an effort designed to prevent the proliferation of child pornography, 2257 has historically been used by the federal government as a tool to enforce producer compliance with its onerous record-keeping and labeling obligations designed to verify the age of models appearing in sexually-explicit imagery. Some records inspections have occurred by the Attorney General’s office, although actual prosecutions under the law have been essentially non-existent.  Recently, however, the statute is being adopted by litigants, industry participants, and governmental agencies as a sword wielded against adult businesses, instead of the protective shield it was meant to be.

A little over two years ago, the industry witnessed the first use of 2257 in a copyright battle between two adult businesses in federal court. In a lawsuit filed by Ventura Content, Ltd. (a.k.a. Pink Visual) against the tube site Motherless.com, the former alleged, among other claims, that Motherless failed to maintain performer records as dictated by 2257 and failed to post the mandated disclosure statement on its website. The requested relief? Ventura asked the court to shut down the tube site based, in part, on its failure to comply with 2257.

Although the ability to protect against copyright infringement is an essential goal in the adult industry, insiders using 2257 as a weapon to battle each other in court sets a dangerous and unsettling precedent. The DOJ’s enforcement of 2257 is intimidating enough, but the thought of a litigation strategy designed to shut down adult media for violations of the statute would add a layer of credibility to 2257 that threatens the industry’s challenges to the statute, and is ultimately self-defeating.

Much more recently, in November of 2013, a John Doe defendant asked a court to examine Malibu Media’s 2257 records in order to, essentially, invalidate their copyright infringement claims against him. Doe was accused of illegally torrenting 19 of Malibu Media’s copyright films and in turn, made the claim that if a film is not accompanied by adequate 2257 records, then it may not be validly protected under copyright. The case is currently still pending.

Although Doe’s attorney’s strategy may have been a bit of a long shot (as it would be impossible to know the status of plaintiff’s 2257 records short of inspecting them himself), the point is not necessarily whether these 2257 abuse tactics are working, the concern is that they are being employed at all. While these instances of using 2257 to buttress industry infighting are the most prominent, there have been others and the trend is disturbing.

The abuse of 2257 unfortunately doesn’t stop with adult industry participants and John Doe defendants, however. Recently, unconfirmed reports indicated that Cal/OSHA has been subpoenaing 2257 records for various adult content producers with an insidious and ulterior motive: busting the companies for violating the LA County ordinance colloquially known as Measure B, requiring condom usage in adults scenes shot within the county limits. According to these reports, Cal/OSHA obtained the 2257 records in order to ascertain dates and times of shoots – information that would necessarily be contained in the 2257 records.  Thus, the County would be able to confirm whether the producers are complying with Measure B and pulling the required permits. If it finds out they are not, Cal/OSHA can impose heavy fines. CAL/OSHA records do confirm that the companies are being investigated.   

It seems as though instead of simply maintaining records to ensure age verification, adult industry producers now need to worry about a slew of ancillary legal concerns relating to their 2257 compliance.  Any problems with a producer’s compliance regime could prevent them from enforcing their copyrights or result in an unfair competition claim by a ‘holier than thou’ company who claims perfect compliance.  The problem is: there is no perfect compliance.  The byzantine regulatory scheme created by Congress and the DOJ poses risks of technical violations for even the most diligent producer.  Any effort to give credence to an ill-conceived law like 2257 is, at a minimum, bad karma, and at most a tacit admission of the validity of the law.  My humble recommendation; leave 2257 out of the industry infighting, and adopt a cohesive position regarding the unconstitutionality of the burdensome federal statutory abortion we know as 2257. 

22
Jan
14

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.

22
Dec
13

Analysis: The Great Firewall of Britain

We started hearing rumblings of anti-porn censorship by European governments at the beginning of the year. Back in March, the E.U. Parliament voted on a proposal that would have set out the path for laws “banning pornography in all media” across the E.U., including the Internet. Fortunately, the controversial “porn ban” section of the proposal – not so aptly titled, “A Resolution on Eliminating Gender Stereotypes in the EU” – was struck down “amidst censorship concerns.”

Instead of genuinely examining the potential censorship issues with such overbroad legislation, the U.K.’s prime minister, David Cameron, decided to make the porn ban his pet project. But with the gender equality pretense falling on deaf ears, he went straight to the subject sure to incite moral panic at its finest – old faithful: saving the children.

After all, that refrain worked when the U.K. passed its ban on “extreme porn.”  That law was recently used as justification for thousands of U.K. law enforcement officers to raid the homes of over 3,000 London residents and seize more than 1,000 DVDs, cell phones and other media, containing extreme porn. This sort of book-burning effort would never survive constitutional muster in the U.S., but the U.K. is now taking its Internet censorship efforts to the next level.

Under the guise of preventing child abuse and underage exposure to porn, Cameron rolled out his “voluntary” Internet filtering plan, with ISPs designated to do the dirty work. Despite the fact that common sense says end-user-level filtering is more effective at blocking unwanted content, such an active choice apparently leaves British citizens with too much free will.

By implementing default ISP-level filtering, it is abundantly clear to the U.K. public that their government has made the choice for them. Over 90 percent of U.K.-based ISPs have already implemented the default blocking of a wide variety of controversial content, including pornography.

Many of the U.K.’s anti-censorship groups were expecting more pushback from big ISPs, which would then force the issue to legislation as opposed to mere policy. But the ISPs seem happy to cooperate. They are now reaping the benefits of sleeping with the enemy and have been tasked with constant refinement of their filters and threatened with additional government regulation if they “do not answer to future demands or maintain momentum.”

The adult entertainment industry is in good company though, as the pre-selected filtering system restricts several other categories of “problematic” material such as that related to alcohol, drugs, tobacco, political extremism, violence, gaming, and social networking.

Some ISPs will even block “esoteric” material by default – although no definition of that term is provided – thus, allowing ISPs broad discretion in determining which sites to block.  Only by contacting one’s ISP and choosing to shamefully opt-out of the default filter system, will Internet users in the U.K. get “full” access to the web.

These filters are being presented to Britain as the saving grace of the Internet, despite the paradoxical reality that network-level algorithmic blocking will most certainly not catch everything it’s supposed to, and inevitably block material it shouldn’t.  The cautionary tale brought up throughout this entire process, but quickly dismissed by Cameron and his supporters, is that of Australia.

Not long ago, Australia implemented a countrywide filtering system as well.  Within months, legitimate sex education sites, gay and lesbian support sites, and even medical forums discussing sexual issues slowly started disappearing.  Fortunately, Australia has since tempered its filters, but not after causing a serious erosion of digital freedom.

Aside from the immense privacy and liberty issues, what about the inevitable collateral damage that will result from the imperfect logistics of such a system?  Are the ISPs responsible (financially and otherwise) for overzealous blocking and timely correcting such mistakes?  Again, since these practices are merely the result of David Cameron’s incessant temper tantrums and not (yet) parliamentary law, there is no governing body tasked with oversight of the filtering process ….  Except the ISP itself.

Whether Cameron is attempting to tackle the insurmountable task of isolationism in the Digital Age, or his efforts are merely a misguided attempt at country-wide moral salvation, there’s no excuse for such regressive policies in the 21st Century.

The prime minister is undoubtedly aware that his proposed filtering system will block perfectly legal material and prohibit many adults (not children) from accessing such content.  Yet he continues this assault on fundamental freedoms.

Unfortunately, censorship tends to spread like wildfire once it takes hold.

This particular flavor of ISP-based filtering censorship is not limited to the U.K. Canada may jump on the bandwagon too, if Conservative Member of Parliament, Joy Smith of Winnipeg, has her way.  She believes in the U.K. approach: All pornography should be preemptively blocked in Canada, with users forced to ‘opt in’ to accessing adult content by contacting their Internet service provider.

A Change.org petition has managed to receive more than 10,000 signatures by people supporting these censorship efforts, despite the fact that the effort is based primarily on the junk science of porn addiction.

For months, anti-censorship activists have tirelessly sought the truth behind these new efforts.  The layers of bureaucratic red tape have slowly peeled away to reveal yet another misguided political agenda.

This new breed of censorship cannot be dismissed as merely another family values-based, moral panic brand of suppression.

The censorship crusade currently invading the E.U., grows from something much more dangerous than typical right-wing extremism; this movement is rooted in the left.  Armed to the teeth with the pseudo-liberal views of classic anti-porn feminists like Dworkin and MacKinnon, this resurgence of antiquated feminism by European officials is truly alarming.

Anti-porn feminism calls for the abolishment of pornography, as it is alleged to be the visual manifestation of female oppression. What this school of thought tends to ignore are the notions of free will, accountability, and self-regulation – the same principles forgotten by David Cameron and his regime.

Anti-porn feminism classifies all adult material – regardless of the actual content – as an innate social harm.  It fosters the close-mindedness that sex-positive feminists have been combatting since the 1980’s.  It’s the kind of thinking that blames rape on porn, instead of the rapist.  Of course, there exists a mountain of actual, peer-reviewed research indicating quite the opposite; the widespread availability of erotic material has, in fact, reduced the rate of sex crimes.

For example, between 1981 and 2006,  rape crime in the U.S. declined  85 percent despite the dramatic increase in availability and use of adult material during the same time. As with many anti-porn arguments, the facts simply do not support the conclusions.  However, this particular anti-porn feminist renaissance is a formidable threat to free expression, as it continues achieving significant victories throughout the E.U.

“This shift from right-wing to left-wing censorship is a dangerous trend, and makes it more difficult to dismiss the opponent as right-wing kooks doing the Lord’s work,” said Jerry Barnett, founder of the Sex & Censorship campaign (whose website is not-so-ironically blocked by U.K. filters).

In a recent discussion with the author about the U.K.’s anti-porn political agenda, Barnett warned that the consequences resulting from this movement will be felt across the board:  “The U.K. market punches far above its weight class in erotic content consumption,” meaning that such censorial practices will significantly impact both, the rights of viewers and also the financial bottom line of any adult content producers distributing to a U.K. audience.

Given the high stakes ante on the table, the response by the U.K.-based adult industry has been surprisingly underwhelming. Perhaps some feel that they will be deemed the golden child, and given the governmental stamp of approval to operate in a new, monopolistic marketplace.  U.S. adult industry activists have been slow to react as well, with some exceptions.

Whatever the reason, the adult industry’s relative silence is deafening and such inaction is dangerously short-sighted.  When ISP-level filtering becomes an accepted practice in any developed nation the continued availability of erotic speech is at risk in every nation.  The repercussions are by no means restricted to the U.K., and its efforts have already spawned new calls for ISP-level porn filtering in Iceland and Australia.

While the adult entertainment industry might believe that it can write off the U.K. market as a fluke fiscal loss, it should not stand idly by while a country that otherwise recognizes individual liberty, crushes free speech rights of those who wish to access erotic material.

The battle lines have been drawn in this tremendously important fight for Internet freedom.  London calling … for help.




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