Could 2257 finally get defeated?

[pornlaw]

Originally Posted by FSC Diane

The history of the government’s defense of Section 2257 indicates that the Justice Department will not make any real concession until its back is up against the wall in court. Litigation brought in the past by Sundance and continued today by Connections and FSC has already resulted in very substantial gains and improvements-(yes Michael, third-party record-keeping).

So I understand this correctly, you are stating that the FSC litigation efforts have resulted in numerous changes in 2257 and 28 CFR 75, one was to allow third party record keeping.

Okay. I can buy that.

However, now one of the FSC's challenges to 2257 completely ignores the positive change you just claimed was a victory. And attacks the law based on the notice requirements, the hours required and possible intrusion at the time of an inspection. Isnt this prior restraint argument offset by third party record keeping victory that the FSC won ? I am confused.

Why even bother with this argument ?

So the first task of continued litigation will be to narrow or eliminate the remaining ambiguities and confusions. With a new administration and a track record of litigation-inspired government ‘clarifications,’ we may be in a position soon to clear up most of the remaining relatively small interpretation and implementation problems.

Okay. I can understand that.

But even so, fundamental constitutional questions remain. Why does Section 2257 treat adult businesses so harshly compared to the way Section 2257A now treats Hollywood and other softcore (i.e. simulated) producers?

I can understand that one as well.

Does the First Amendment allow the government to force adult businesses to prove that their expression is constitutionally protected (in this case, not child pornography), or do our constitutional traditions place the burden of proof squarely upon those who suggest or suspect that particular speech is unprotected by the constitution

I dont agree with this one. You cannot not prove a negative.

Even if some minor requirements (such as ‘check all IDs before you shoot’) are trivial or unassuming enough to pass constitutional muster, just how far may a record keeping scheme go in burdening many tens of thousands of people and companies who have not had – and never would have – anything to do with child pornography?

I cannot comment on this since I am not a producer. However I can tell you that we have had clients tell us that www.2257Safe.com has made their record keeping much easier, less burdensome and more affordable.

I understand that the "2257 Safe" business model is reliant on the law continuing in it's overburdensome state. Nonetheless, FSC believes that saving the industry and its businesses literally millions of dollars is more than the personal self interest of those who profit from 2257.

Then you dont understand our business model. Our business model is dependent on the fact that the third party record keeping aspect of 2257 remains in place. As for the other aspects that you refer to as overburdensome, they are not pertinent to us other than we might have to re-write some code when the law changes again.

Overall, I really think the FSC is being myopic in regards to 2257. Piracy is considerable more of a problem than record keeping. Piracy is quickly killing this industry. We will not even have to worry about 2257 in a few years if piracy isnt addressed. However I do not think piracy is an issue for the FSC though.

Quite actually I think 2257 might be a valuable weapon in challenging tube sites. Obviously, the DMCA will protect the theft of this industry's content. However, at least with 2257 and its record keeping and notice provisions, we can at least make a claim of unfair business practices. If Vivid didnt settle with Pornotube/AEBN we could have had a decision in this regard already.

Someone needs to step up and start using 2257 as a weapon. The government uses it as a weapon against us. We should take it from their hands and use it against our enemies.

The "overbudensomeness" you refer to can certainly be used to our advantage.