“Legal Issues facing Adult Webmasters” with David Wasserman & Lawrence Walters – www.firstamendment.com<Busa> Very thoughtful of Wasserman & Walters to join us today– it’s not every day that a busy firm takes time out.

<LWalters> Happy to do it

<Busa> I personally recommend Wasserman & Walters to anyone familiar with the adult industry and FL’s legal climate.

<DWasserman> We pride ourselves in not being the traditional stuffy law firm

<LWalters> The problems are coming on a national level now.”Legal Issues facing Adult Webmasters” with David Wasserman & Lawrence Walters – www.firstamendment.com

<Busa> Very thoughtful of Wasserman & Walters to join us today– it’s not every day that a busy firm takes time out.

<LWalters> Happy to do it

<Busa> I personally recommend Wasserman & Walters to anyone familiar with the adult industry and FL’s legal climate.

<DWasserman> We pride ourselves in not being the traditional stuffy law firm

<LWalters> The problems are coming on a national level now. Elections will be key

<WilliamC> it appears either way the elections go we are somewhat screwed

<DWasserman> If George Bush wins we are all in trouble

<WilliamC> they both have issues with us

<twinkley> more so than with Gore/Lieberman?

<LWalters> I’m sure most of you know that the House passed an appropriations bill seeking 5 million dollars to prosecute obscenity cases

<Jabumba> Seems like either way it’d be bad.

<TiBo> We’ll just have to make sure the libertarians win both houses. 😉

<Busa> It doesn’t seem like that’s much money for the Government to work with, though. At least not for sweeping reform.

<cdawg> i dunno if it’s too early to ask, but i’d like to discuss the impact of the recent MPAA vs Corley decision in New York on adult webmasters. Do we have to watch where we link now?

<LWalters> Gore will be forced to address the issue even if he doesn’t want to

<DWasserman> We have recently been retained by a web site which expects to be indicted for sale of a video

<LWalters> You’ve always had to watch links. There are a couple of cases internationally of webmasters going down for child porn links. I’d start with a disclaimer about your links.

<DWasserman> We have advised people from the get go that there may be liability for links.

<WilliamC> Yeh we have always been responsible for our pages content, even links.

<LWalters> something like: “This site maintains no control over the content of any linked site”

<Oz> Steve Workman!

<SWorkman> Good afternoon, all.

<LWalters> Hi Steve

<twinkley> Good Afternoon Gentleman

<twinkley> First thing I would like to thank you all for taking the time to be here with us

<DWasserman> We want to start with intellectual property questions for Steve who may not be able to stay for an hour

<twinkley> Steve – for those who have been hiding under a rock can you please introduce yourself and give us a bit of a background on yourself

<SWorkman> My pleasure. I have specialiazed in representing adult internet clients for 3 years now, before that was in Hollywood with the film and tv biz as a lawyer and taught internet and media law at law college. I am of counsel to Wasserman and Walters And am presently based in Boca Raton, FL, wiht offices in Chicago and LA.

<twinkley> your specialty is copyright infringement?

<SWorkman> Copyright is one area of expertise. I also do alot of domain name disputes with ICANN and trademark issues as well as contracts, licensing, etc etc.

<twinkley> okay…..our first question comes from stephen … say you run a picpost and the submitted pictures are copyrighted by someone else….are you liable for linking to that material?

<SWorkman> You are potentially liable under the theory of contributory infringement. You should always have an indemnity from content providers.

<twinkley> contributory infringment?

<WilliamC> means yer assisting in the distribution of copyrighted material

<twinkley> would a disclaimer provide protection??

<SWorkman> A person who is involved as a remote distributor, or as a primary distributor of third party content is liable for infringement when he/she knows of the infringing nature of the material and has a financial stake in the publication.

<Mark> How easy is it to enforce copyright matters in foreign countries?

<twinkley> as a third party dist. what kind of legal reprecussions are you looking at if busted?

<SWorkman> If the copyrighted material was timely registered with the US Copyright Office, you are looking at the possibility of statutory damages of many thousands of dollars, paying the other side’s legal fees, and an injunction. If not timely reg’d, then the moneary recvery availalbe to the copyright owner is his actual damages (hard to prove) and disorgement of oyur profits attributable to the infringement.

<twinkley> I have a question of my own…..is it possible to trademark a phrase such as “Learn to Earn” ?

<SWorkman> Yes, it is. Depends on whether another person or entity is using a similar phrase in a related line of goods and or services.

<twinkley> okay….are you actually trademarking those words then? can someone use “learn HOW to earn” and not be infringing? or any variation thereof

<SWorkman> Trademark law is essentially a consumer protection statute, at both the state and federal levels. Infringement occurs when confusion in the marketplace is establshed.

* Oz is confused, and that is an established fact.

<twinkley> okay….i think I understand…if two different company names use the same “slogan” but are not really confusing themselves with the general public it is okay but if they are in essence selling or promoting the same type of product/service then there is a problem
where one can be mistaken for the other

<SWorkman> Yes, because the releant market is in the class of goods or services for which the TM is held.
If that simila phrase creates confusion as to the relevnt market for the source or origin of the goods/services, then a finding of infringement is proper. he test for confusion will be made in the relevant marketplace.

<twinkley> thanks! Our next question is from cdawg…

<cdawg> could a picture-post such as the one Stephen referred to earlier, which automatically posts images, be considered a service provider under the new Digital Millenium Copyright Act?

<SWorkman> Good question, and I believe you could seekthe DMCA safe harbor if the service was truly passive.

<Oz> What can a webmaster legally show in a non-age verified environment?

<twinkley> According to the various press release by the FTC they are cracking down on ‘dozens’ of sites. Is there a list? Is there any way to find out what risk your subject to?

<SWorkman> You are referrrng to the “free” site problems?

<DWasserman> Which risk are you refering to?

<SWorkman> You need to fully dfisclose ALL Terms of Service, first.

<twinkley> yes the free site problems

<SWorkman> Second, you need to give members an easy method of terminating, in my opinion.

<LWalters> Are you asking a content question?

<DWasserman> are you speaking of adult content provided before any firewall?

<SWorkman> The FTC polices against consumer fraud and misrepresnetation. So don’t defraud your members, and be open and onest as to all issues.

<twinkley> not a content question, purely a “who is the FTC going after” for the free trials issue

<SWorkman> And, no, there is no “list” maintained by the FTC alerted you that you are unde investigation.

<WilliamC> what about copyrighting a “type” of cgi program? Can this be done and what are the legal ramifications for other people creating the same script but using their own unique code to do so, and not copying any of the other persons work?

<DWasserman> In fact, they are not allowed to disclose if you are under investigation

<SWorkman> A cgi script is a creative work subject to the copyright laws and, therfore, suited for a registration application to the US Copyright Office. What you need to be careful of is that copyright attaches only to “orignal” works, that is, “original” to you – meaning it only applies to what you have created.

<WilliamC> ok thank you

<cdawg> concerning ICANN’s stance on domain names, is there any rhyme or reason to the WIPO rulings? How can Madonna Ciccone sue the owner of madonna.com, if the site does not mention her or music?

<SWorkman> If your script is based on other’s work, you need to disclose this and it may be that your modifications are either (1) an illegal dervative work or (2) insufficient in nature to obtain registration.

<SWorkman> I would need to see the script and know the material on which it is based to make any further determinations.

<SWorkman> Understand?

<WilliamC> yes thank you

<DWasserman> Have you seen the WIPO decision on Barcelona.com

<cdawg> i haven’t

<SWorkman> Yes, there ismuch logic to these rulings.

<DWasserman> WIPO ruled for the City of Barcelona and took away someones domain name. What happens if it is Paris and there is Paris, Missouri as well as Paris, France?

<SWorkman> Madonna has intellectual property rights in and to her persona. Are you kidding?? You thinkyou can lawfully draw traffic to your site using her name without her permission?

<SWorkman> What are you referring to in the Paris quesiton?

<twinkley> ummm…..but technically the name was used before she was…thought of

<DWasserman> the Barcelona decision

<cdawg> sorry, my point was that ‘madonna’ can also refer to the virgin mary, and is a word in the dictionary

<twinkley> exactly

<SWorkman> Madonna’s name is now sufficiently famous to afford her these rights.

<SWorkman> The fact that the word Madonna also has other meanings is wholly irrelevant in ICANN arbitratons.

<twinkley> what about something along the lines of themadonna.com?

<twinkley> completely different meaning there….

<twinkley> but still has ‘madonna’ in it

<SWorkman> You can try, but don’t be surprised if you’re hauled into ICANN arbitration. You have a beter shot there, but just apply some commmon sense.

<twinkley> thanks 🙂

<buran> basically, the person/group with the most money wins

<SWorkman> The ICANN arbitration procedure is becoming more and more important. No, not true, the person with the most money doesn’t always win. Particularly in ICANN arbitration, because it is such a summary proceeing that money is irrelevant.

<twinkley> lets discuss pornography and obscenity…if i have a members area or AVS site where the adult content is in an age verified environment am i still liable to obscenity prosecution?

<LWalters> Yes

<twinkley> and is providing additional non adult content sufficiant to protect me under the Miller test?

<SWorkman> i will be speaking at length about the ICANN arbitration framework at the ia200 show, so you may want to attend.

<Oz> Larry & David, feel free to jump in also. 🙂

<LWalters> Basically obscenity charges cannot be avoided if they want you. Providing valuable content helps, but is not a guarantee

<twinkley> what is the best way to minimize the risk?

<LWalters> We advise to link to or include as much non-sexual content as possible

<SWorkman> Folks, I need to run. Thank you all very much for your time and input.

<DWasserman> There is a famous case that says providing famous quotes on the sleve of an adult magazine does not make it literature

<LWalters> Basically, the best way to avoid the risk is to stick with simple nudity; any sexual activity images can be charged depending on the local community standards

<LWalters> But, the good news is… that the Third Circuit has found the whole community standards analysis unconstitutional as applied to the web; what we’ve been arguing all the time. This might be a way out for the adult webmaster communituy

<Jabumba> what would your biggest concern be legally if you were the webmaster of a free adult site that showed explicit images?

<DWasserman> Obscenity prosecutions are already gearing up. The time to prepare is before they start.

<LWalters> Use a credit card just to verify age

<DWasserman> And include other content in the site

<twinkley> softer is better then? what about hardcore banners?

<LWalters> The banners will be considered since the site must be taken as a whole

<DWasserman> In the last great obscenity battles, a company PHE which is Adam & Eve was helped by having had a sex therapist having reviewd the materials before hand

<twinkley> banners linking to other sites ….

<LWalters> Softer is always safer, but perhaps not as profitable

<Jabumba> but it’s unrealistic to ask for a credit card just to see a free site.

<LWalters> The content on the other sites might also be considered if the prosecutors get smart

<DWasserman> Links to other sites can result in criminal liability. The inverse should be true if you link to socially redeeming materials.

<raulk> What legal liability does a design firm or designer have if they use the clients supplied images and then later finds out the client didn’t have the right to use those images? Are designers liable for the site they designed after they transfer the site to the client? (Content, theme, etc…)

<LWalters> Otherwise, your concern is a state harmful to minors charge

<Oz> The way our industry works is not conducive to that. Is there any compromise that a working webmaster could consider?

<LWalters> Just keep it tame if the content is free until the technology allows for some other way

<DWasserman> There is no criminal liability absent knowledge with the exception that some states do not have mistake of age as a defense

<cdawg> should the standard ‘modulo-10’ check for a valid credit card number format work to verify age (could it be fraudulent to try and circumvent such a thing?) or should the credit card processor always be contacted to verify such a number?

<LWalters> There is a potential for fraud no matter what the procedure, but most laws just require a good faith attempt to verify the age even if not accurate

<DWasserman> I know of some companies looking into checking with credit reporting agencies to verify age

<LWalters> Under the D of J thinking, credit card verification is enough

<WilliamC> veronica allows you to verify cards with 0 charge and its a free service

<Oz> I’m familiar with what cdawg’s asking. We can run a credit card through an actual billing mechanism and we know that is generally considered to be a good faith attempt to verify age. What if we make sure that the credit card *formula* is valid? That’s not the same thing as actually running the card.

<cdawg> do you have a url to direct us to for more info on veronica, WilliamC?

<LWalters> Any attempt to verify a valid credit card should comply with the good faith standard

<DWasserman> That is what would happen if you were conected to the credit reporting agencies.

<Oz> Where can we find the good faith standard?

<WilliamC> cdawg yes email me and I will dig it up again for you

<LWalters> Each state has its own law on harmful to minors; there will be a body of case law interpreting each statute. Contact a lawyer

<WilliamC> or Ill just make a script to interface with them and post it free on TAW

<DWasserman> Most harmful to minors laws as applied to the net are being found unconstitutional

<Oz> Larry: so the short answer is, there’s no short answer. 🙂

<LWalters> Good faith is a very subjective standard, but the testimony by Dept of Justice officials was that credit card verification was enough

<DWasserman> There was a recent California decision going the other way To clarify, the California case was upholding a harmful to minor law

<twinkley> if you have an AVS site and a minor fraudulently obtained a password or circumvented the script mechanism would you be liable for his actions?

<JMM> Password Sites: Free Speech, or the assisting of the unauthorized access of a computer network(s)?

<twinkley> first AVS’s

<Oz> Good question, JMM.

<cdawg> (whereas a password site is a site containing several passwords to various pay-based sites)

<LWalters> I think a creative prosecutor could make a case that these sites are assisting in theft

<LWalters> Guys like us would cry Free Speech

<cdawg> i was considering that paysite passwords could fall under the secret service definition of ‘access devices’

<LWalters> not a bad theory; it’s a dangerous business, and we refuse to represent those sites

<twinkley> okay….along the same lines…. if you have an AVS site and a minor fraudulently obtained a password or circumvented the script mechanism would you be liable for his actions?

<LWalters> That would again come down to whether you in good faith tried to prevent the access…

This is one of the allegations in the Polk County case but has not been charged.

<LWalters> the minor’s fraudulant actions would likely be an intervening cause avoiding liability

<JMM> So then I would be protected in your opinion under the 1st ammendment… And they paid me to post the code?

<twinkley> I posted the alarm code to your house and someone burglarized you using that

<LWalters> Sounds like a different scenerio there…

<twinkley> how so?

<twinkley> it seems to work the same way…

<DWasserman> Under the alarm code, if you have knowledge than you are liable but if you had no idea what it was that you posted they would be hard pressed to make you liable

<LWalters> I think that posting info that allows one to gain access to someone else’s property can be a source of liability and avoided… but I could dream up free speech arguments to the contarary

<twinkley> a little off topic but…..a good question from ryan nonetheless….

<Ryan> A question I have for the lawyer is on tv.. the E channel they are always selling these video’s of girls of mardi gras and girls on spring break getting wild and lovers caught on tape.. how is this legal for them to do? There is no way they have model releases for everyone showing there stuff

<LWalters> Exactly; the girls might have an invasion of privacy claim…

<DWasserman> There is currently a case in Ca. brought by a hotel maid caught on tape in an adult video without a release

<LWalters> the records keeping law doesn’t apply to simple nudity with nothing more

<WilliamC> they are in public places tho

<LWalters> that’s how the mardi gras sites get away with it, unless someone sues

<WilliamC> what ryans talking about

<twinkley> but because what they are doing is publically outrageus…why should they have an expectation of privacy?

<DWasserman> But if you are selling the content they may have a right to publicity case

<WilliamC> good point

<LWalters> privacy right apply to making money on someone else’s image; if it’s simply reporting news, its protected by the First Amendment.. grey area as to what is newsworthy…

<WilliamC> porns newsworthy to perverts 😛

<LWalters> exactly what my argument would be

<DWasserman> Anymore questions?

<LWalters> Probably still profitable to sell the images and settle the claims

<twinkley> i think we are about ready to wrap it up…..

<Oz> Any closing comments from our legal experts?

<WilliamC> ok heres one, say i take a contract to do a design or program for someone, nothing in writing gauranteeing anything, that person becomes obnoxious and we refund any deposit and tell him we are not interested in working for him. does he have any recourse?

<LWalters> We’re honored to be involved in this and learn what’s on the minds of adult webmasters; hope to do it again some time

<DWasserman> We look forward to seeing many of you at ia2000 and are always available if anyone is in need of our service. We hope to work to insure that all of you remain in business after the election

<Oz> Excellent — also, everyone, be sure to check out www.1st-amendment.com

<LWalters> Ok; that depends on contract law of your state and the terms of the alleged oral agreement

<Oz> Wasserman & Walters is legal counsel to TrueCash as well as TheAdultWebmaster.com… they are the best in the business.

<Stephen> Thanks for coming guys! I know you’re busy, and we appreciate your time and advice!

<twinkley> many many many thanks guys! we really appreciate you taking the time to answer our questions!

<Oz> Check out www.theadultwebmaster.com/legalcorner for more in the future from Larry, Steve, and David.

<twinkley> check out www.1stamendment.com !

<DWasserman> Hope to do this again soon

“Legal Issues facing Adult Webmasters” with David Wasserman & Lawrence Walters – www.firstamendment.com<Busa> Very thoughtful of Wasserman & Walters to join us today– it’s not every day that a busy firm takes time out.

<LWalters> Happy to do it

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