Quote:
Originally posted by RawAlex@Aug 4 2004, 12:53 PM
1 - Isn't it the job of the congress and hosue to write, amend, and modify the laws of the nation? I can understand a "clarification" of the rules, but what I see here is a wholesale revision and change to the written law that creates burdens that were not previously in place, and does so without indicating effective dates, or how far back these records must suddenly be kept.
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Yes, Alex. In this country Congress makes the laws. Thank you for reminding me of this.
First of all, let me preface this, as always with the statement “I am not a lawyer”, however I am an idiot! Perhaps we are all idiots.
I have been doing a tremendous amount of research as of late on the current 2257 requirements and the new changes, the whole bit. I have been watching the boards go crazy with questions, suggestions, ideas, and general wholesale panic.
Today, I spent quite a bit of time going back through all the various documents I have read and what I have asked my lawyer to interpret for me. I basically went through 2257 from origin to present.
I realized today as I reread the “Sundance v Reno” decision hat the op/ed piece in avnonline was probably 100% correct and that for the most part, these changes will most probably not affect us anymore than the current rules do.
Sundance v Reno is a tremendously important part of this entire picture. In Sundance v Reno, the 10th circuit court of appeals basically found that there was a major ambiguity in the rules as promulgated by Reno. The definition of producers as defined in Reno’s rules pretty much brings all webmasters in as “secondary” producers although it did not mention the internet or websites explicitly. Ashcroft’s version of the rule explicitly specifies that webmasters are clearly considered a secondary producer by bringing computers and websites into the definition. Sundance v Reno pretty mush wiped out the definition of secondary producers because of the ambiguity that appears in the exemption clause. The exemption clause states that a producer does not include anyone whose conduct is limited to Photo processing, Mere distribution or any activity (other than what they defined as a producer) that does not involve the hiring, contracting for, managing or otherwise arranging for the participation of the performer(s).
Sundance V Reno (this is a laymen’s plain language interpretation as I understand it) stated that Reno’s rules attempted to broaden the scope of the law that Congress had passed by enlarging the group that could be considered producers. The definition of producer as congress passed the law is:
“the term ''produces'' means to produce, manufacture, or publish any book, magazine, periodical, film, video tape or other similar matter and includes the duplication, reproduction, or reissuing of any such matter, but 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”
The 10th circuit found ambiguity in this in that a person that publishes or reissues does not necessarily “hire, contract, etc”. They reasoned that the way the law was written was poor but that the DOJ did not have the right to rewrite the law, that only Congress had that right. They pretty much said that the words included that described hiring etc were intended to mean that that was what Congress considered a producer, someone who was actually involved in producing the sexually explicit content, not someone who just published it.
Now, the tenth circuit only controls those areas that are in the tenth circuit, so it is possible for another court to rule differently but the Sundance decision does provide a fairly clear precedent that can be cited.
The importance of this to us, the Adult Webmasters who do not produce our own content but instead purchase it from the original producers or through brokers is that we would NOT be required to keep copies of all the records. We could continue to reference back to the primary producer as record keeper. Many of us would still have many changes to make to come into compliance if Ashcroft’s rules go into effect. We would have to get our 2257 statements into the proper position on our site, we would possibly have to resize the statements, things like that, but if Sundance held true, we would not have to go back and produce the paper trail (which in my mind is the nightmare aspect of this whole thing).
Anyway, as I said, I am not a lawyer. I would suggest that everyone consult with their legal representation before making any decision as to what they are going to do. Me, I’m going to go eat my dinner