Edited in: I tried to link to the avn article at their site, but the link was spazzing out, so if you go to
http://www.avnonline.com , go to this months issues and look through the table of contents and you will find it
Ok, so I'm reading my copy of AVNonline last night and they have a short op/ed on the 2257 changes (written before the actual changes were published in the Federal Register online version is
Here ) and from what I am seeing, the guy who wrote it is more or less saying that webmasters won't have to keep the records (unless of course they are primary producers) and instead will only have the burden of getting their 2257 statements in the proper place and format.
This is totally different than anything I have yet seen. I have run the law past my counsel (free speech guy here in KC), I have read the stuff on XXXLaw.net, I have read the stuff that Brandon has written, I went to the YNOT radio show and listened and participated in the chat, I have visited numerous law sites and spoken to many many people. This is the first time I have seen it implied that we won't have to uhave copies of the records but instead will only be making what seems to me is a fairly minor change to business as usual.
I think the article is wrong. One of the main changes, from my point of view, being proposed is that the DOJ have clearly stated that webmasters ARE secondary producers and will be required to have the records on hand. However, the article does point out (not clearly or strongly enough) that the proposed changes fly in the face of the 1998 appeals court decision in Sundance versus Reno.
From the article:
"The regulatory changes begin with what appears to embrace the United States Court of Appeals decision in Sundance Assocs. Inc. v. Reno, 139 F.3d 804, 807 (10th Cir.1998). That case invalidated the component of the original regulations that required some “secondary producers” maintain copies of records, allow inspections, and so on. The new regulations include an exception that appears to conform to the Sundance case, which held that the original regulations contradicted the statute by requiring record-keeping by categories of businesses that were clearly exempted by the statute: “production” that requires record-keeping “does not include mere distribution or any other activity which does not involve hiring, contracting for[,] managing, or otherwise arranging for the participation of the performers depicted.” But then “secondary producers” are an exception to the exception, which seems to entirely fly in the face of Sundance. Also now specifically exempt from record-keeping under the new regulations are ISPs. "
However, since the changes clearly add webmasters to the category of secondary producers:
"(2) A secondary producer is any person who produces, assembles,
manufactures, publishes, duplicates, reproduces, or reissues a book,
magazine, periodical, film, videotape, a computer-generated image,
digital image, or picture, or other matter intended for commercial
distribution that contains a visual depiction of actual sexually
explicit conduct, or who inserts on a computer site or service a
digital image of, or otherwise manages the content of a computer site
or service that contains a visual depiction of, actual sexually
explicit conduct, including any person who enters into a contract,
agreement, or conspiracy to do any of the foregoing."
and the changes clearly state that secondary producers as defined are NOT exempt from the record keeping requirements:
" (4) Producer does not include persons whose activities relating to
the visual depiction of actual sexually explicit conduct are limited to
the following:
(i) Photo processing;
(ii) Mere distribution;
(iii) Any activity, other than those activities identified in
paragraphs ©(1) and (2) of this section, that does not involve the
hiring, contracting for, managing, or otherwise arranging for the
participation of the depicted performers;"
I do not see how DeWitt can claim we are still exempt.
any thoughts ?