.Seven Months on the Road with the Webmasters:

The Ten Important Legal Questions that Webmasters and Content

Providers Asked Most in 2001.

By Attorney J. D. Obenberger

http://www.xxxlaw.net/

© 2001 J. D. Obenberger, All rights reserved.

Written Specially for YNOTnews and the Members of the YNOT Community

During the year 2001, I’ve traveled the length and breadth of America and beyond

as the keynote legal speaker for the Cybererotica sponsored Adult Webmaster Events in

Chicago, Los Angeles, Atlanta, Portland, and Denver, twice at the AVN Online Internext

Show in Las Vegas, at Cybernet Expo in Miami, and at the Great Lakes Webmaster

Conference in Windsor, Ontario.

It has really been a rare privilege and honor for any lawyer to speak before

hundreds of webmasters, content providers, and the businessmen and women providing

support to the adult Internet in every region of the USA and in Canada. I have come to

know these people in a special way, the interesting, industrious, creative, courageous

people who shape the sexual fantasies of two nations and much of the world. I

encountered some of the brightest lights in this industry, persons who would be

impressive in any setting, and I found them both in the audiences and next to me on the

dais; I discovered among them some amazing people and saw in their midst some of the

most brilliant personal spectrums that I have ever seen, powerful, bold, and inspiring.

The adult webmasters stand on the forward edge of the battle area in the perpetual

struggle for personal freedom, and they have my admiration and respect as a result.

When Fantasyman and I first spoke about the AWE speaking tour that started me

on this journey, I had little idea of what the experience would become. It rapidly became

much more than just speaking about the important concepts and principles of law that

apply to adult webmasters for an hour-and-a-half and taking questions. Though I spent

time in the Law Library before the trips to learn about such matters as whether Oregon

and Colorado had constitutionally valid obscenity statutes before my trips there, the truth

is that I learned more of enduring importance from and about the attendees than I did

from that research, and I am left with the strong conviction that from them I acquired far

more than I imparted.

Special thanks goes to the AWE Road Crew members and to the representatives

of the Event Sponsors, Kaiser and Big John and Kath and Amanda and Allie and KB and

Bestaat and Dialer Dave and Raven and Rocki and Susan and all of the others who helped

bring all of this about, and to AJ who provided constant inspiration to me.

At each of the AWE events, I spoke for an hour and told the audience that I would

address any topic it cared to suggest so long as I felt that it was within my competence. I

reserved a half hour for audience questions, and we never ran out of those in any city.

Though I never actually wrote any of the questions down, and though this article may

therefore imperfectly render the actual questions asked from the floor and in the adjacent

halls and during the parties, the following is a sense of the questions I was most

frequently asked during this odyssey, and of the best answers I could provide as I walked

in the midst of the men and women who define and meet the sexual fantasies of the

contemporary world.

1. If I include some text on my site, will that help me avoid an obscenity

prosecution?

Maybe, but not if it’s only a mere pretext for obscenity! A justice of the United States

Supreme Court once wrote that a quotation from Voltaire on the flyleaf of an otherwise

obscene work will not render it nonobscene.

No work may be determined obscene if it has serious literary, artistic, or scientific value

as viewed by a reasonable person, and when taken as a whole. It does not need to be high

art to be nonobscene, it just needs to have a serious aim and result that has some

reasonable literary or artistic or scientific value. Mad Magazine has enough serious

literary value that, even if it included very graphic sexual material, it would be difficult to

image how any court could rationally find it obscene. Especially with the development of

hyperlinks, it is not painful or destructive to the eroticism of the sexual imagery on

contemporary adult sites to include and integrate such linked text as creates a work with

serious artistic or literary or scientific value when considered as a whole. The jury will

have to consider all of its contents, including the linked pages.

You don’t need a weatherman to know which way the wind blows. Now is the time to

add content or to modify it to assure that your site has a serious expressive purpose. It

takes little more than imagination and effort and work to do so.

2. What’s obscene? Is Gay Sex Obscene? Anal?

A comprehensive discussion of obscenity is outside the scope or space limitations of this

article, and so I will not attempt to summarize the entire body of law. All of that begins

with Miller v. California, found on my website, http://www.xxxlaw.net.

The first amendment law of obscenity is a limitation on the power of the state and federal

government to ban, proscribe, and criminalize the possession and distribution of

presumptively protected expressive materials. In that sense, the First Amendment is a

limitation on the powers of democracy, because it elevates expressive freedom above the

wishes of a democratically elected majority of Congress or of state legislatures.

If a work, judged as a whole, has serious artistic, literary or scientific value, it cannot be

criminalized.

Even should it have no such serious value, unless a work appeals to a prurient interest in

sex or other bodily functions, it cannot be obscene. “Prurient” means morbid or shameful.

“Morbid”, in turn, means diseased. In Brockett v. Spokane Arcade, found also on my

site, the United States Supreme Court suggested that material that appeals to a healthy

interest in sexuality is not prurient, even if graphic.

The suggestion here is that the activities that society takes for granted as being part and

parcel of what adult men and women do with one another to please each other sexually

should not be regarded as obscene. The further the material deviates from this societal

image or icon, the more dangerous the sexual content is because there is a greater

likelihood that the finder of fact will find it prurient.

If the work appeals to a prurient interest in sex, it becomes mandatory that it have serious

value, at the risk of being found obscene.

Serious scientific purpose can be found in material that is used to treat or deal with

psychosexual problems. A successful defense to an obscenity charge based on this

avenue will require a scientific expert who finds the material useful for that purpose.

The law of obscenity is as unlike well posted speed limits as possible. There is no list of

particular acts which, if depicted, will be obscene. A determination of obscenity depends

on context, the work as a whole. It depends on prurience. It depends on social value. And

of course, it depends on contemporary community values, a matter now before the

Supreme Court in a somewhat different context, the “harmful to minors” area.

If you can’t live without firm and unchanging rules that clearly tell you what you can and

cannot do, you should become a structural engineer. So long as you swim in the sea

inhabited by adult webmasters, you will have to learn to accept the possibility of risk.

The intelligent webmaster and content provider, especially in this era, will minimize that

risk by carefully assessing content and taking all reasonable steps to minimize prurience

and to maximize legitimate serious purpose.

3. Do I have to be concerned with state and local laws?

You bet.

Most of the sates have obscenity statutes and statutes relating to the protection of minors

from sexual exploitation in pornography and sexual abuse. While the federal constitution

limits the extent to which a state may proscribe the manufacture and distribution of

obscenity, not all of them have legislated to the extent of their powers. Despite the

holding in California’s People v. Freeman, some prosecutors may attempt to prosecute

the production of hard core materials as prostitution, and this is a factor that should be

considered. Some of the states have criminal forfeiture statutes under which obscenity is

a predicate offense to trigger the statute. Some have statutes related to the depiction of

criminal conduct. Many of them have statutes designed to protect minors from exposure

to pornography. An increasing number of states have statues or case law decisions

affecting voyeuristic content. The entire law of privacy, dealing with such things as

commercial exploitation of the images of models and celebrities, and of portraying them

in a false light, is a creature of state law. Many states have statutes relating to consumer

fraud and deceptive business practices, and this may have bearing on billing practices,

advertising, and terms and conditions.

As we have seen in the Voyeurdorm case, now on appeal in the federal courts, local

zoning authorities argue that they have the power to regulate the location of online

expressive businesses as part of their power to reasonably regulate the time, place, and

manner of erotic expression. The key here is whether the so-called adverse secondary

effects of adult entertainment often associated in some minds with adult book stores and

exotic dance cabarets can legitimately be presumed to exist in the absence of exterior

advertising or foot traffic, in a purely online business. It is my strong conviction that

there are no such adverse secondary effects that can act to justify adult use zoning for

purely online businesses, and the suggestion that they do arise, or that it is within the

power of local zoning officials to speculate that they may arise, is tantamount to the

assertion that the content itself is tainted and dangerous. I don’t think that even the

conservative judiciary now wearing black robes on the federal bench is prepared in the

main to accept that proposition.

And don’t forget about local business licenses.

4. How many forms of ID should I require before a shoot? Is it OK to take a

picture of the ID?

If it’s the right kind of ID, you only need one. That means a government-issued ID with

the name, date of birth, and photograph of the performer or model. If the “Offcial” ID

does not contain a photograph, you will need a second form of ID that does bear a photo.

The conventional practice in this industry is to require two photo ID’s, at least one of

which is of the type mandated by law, with a photograph, and that is a good policy.

You need a legible copy of the ID in your 2257 records. A photocopy is perfect because it

can’t get zapped or lost by a film processor and it can be easily stored with the release

and 2257 data acquisition form, from the time of creation.. The problem with digital or

film images of the ID is that they are subject to more problems along the way which may

result in their loss. Videotape is just hard to file in a binder, and harder to scan and make

a digital file of.

5. How long do I have to keep 2257 Records?

You have to maintain 2257 records as long as you or your organization exists and for five

years thereafter, permitting them to be examined by the Attorney General of the United

States or his or her designee at all reasonable times.

6. Q: Can I hire a lawyer or somebody else to be my records custodian on

the 2257 notice?

There’s no reason why you can’t hire someone whose job it is to maintain records. (But

you might want to tell him or her about the notice requirement when you hire him or her

for the job!)

If you can find a lawyer who doesn’t mind the prospect of having anybody John Ashcroft

chooses to designate coming into his law office and camping out as they go through your

2257 records at any reasonable time, go right ahead. I suspect that the lawyer’s other

clients might have some apprehension about file confidentiality if it became a regular

practice. Good luck finding such a lawyer.

The regulations state that the records must be maintained at the producer’s place of

business, and I doubt that a location which is kept just for keeping such records is likely

to comply with the letter or spirit of the regulation. Keep your records where you do

business and this will not become an issue.

7. I’m planning to shoot overseas content. Do I have to comply with 2257?

Arguably, an American who shoots overseas or who contracts for others to do the shoot

may be subject to the strictures of that statute. My strong feeling is that no content should

be used by an American webmaster unless it is 2257 compliant, regardless of where or

when the images were made. Because the penalty for distribution of lewd images

depicting minors is fifteen years imprisonment for each image, the prudent webmaster

will insist on 2257 compliance and deal only with reputable and established content

producers, especially in the case of foreign content. I feel the same way with respect to

live feeds.

8. What can I do to protect my images from being stolen?

Register them with the Copyright Office within ninety days of first publication. A major

factor contributing to a mood of piracy is that the owners of the image have not thought

enough of their images to protect them. Once images are so registered in a timely fashion,

the prevailing owner in an infringement suit can recover 1) his reasonable attorney’s fees

and 2) presumed statutory damages for infringement without expert testimony as to the

economic value of the infringement. This goes a long way to induce an attorney to take

the case without very a substantial up-front fee and it encourages him to pursue it.

9. If content exclusively licensed to me gets ripped off, can I bring an

infringement suit? Do I need the photographer?

This will depend on the terms of the license. A smart webmaster will seek a license term

that grants him the right to bring an action for infringement on his exclusively licensed

content so that he can proceed on his own without the active participation of the

photographer, in the name of the photographer, if necessary.

What may surprise most readers most is that the model herself may have a significant

claim and it may be worth a substantial amount. Remember, the terms of most model

releases extend only to the benefit of the photographer and those who use the product

under his or her license. That means that an image pirate invades the privacy of the model

and commercially exploits her without her permission by using the images, and he can be

sued by the model for this conduct unless her right to do so has been surrendered in favor

of the photographer in the model release.

10. How do I hire a lawyer to help me? How do I find somebody close to

home who knows the law of this business?

This business presents above-average risks of legal complication, and it is foolhardy to

proceed in the adult internet without competent legal guidance and navigation.

With respect to obscenity and the federal law governing the creation of erotic images and

the associated record keeping, and with respect to image piracy, it is a body of law that,

in the main, is national in scope with local wrinkles. The specialized legal knowledge of

statutes and cases used in this field is outside the knowledge and experience of most local

general legal practicioners. Accordingly, expertise means more to you than geography.

An essential part of your team is a First Amendment and adult entertainment lawyer.

The single most reliable place to find lawyers with this knowledge is in the membership

roster of The First Amendment Lawyer’s Association, www.fala.org, though not all of its

members will take Internet cases. Though all of the boards provide attorney listings, the

FALA membership list, in my opinion, is, by far, the best and most reliable place to look

for a First Amendment lawyer.

This article does not constitute legal advice or create any attorney-client

relationship, but is written only to generally inform the public. If you are arrested, secure

the assistance of an experienced attorney immediately, and until you consult with him,

agree to nothing, make no statement, and do not offer resistance.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free

expression and liberty under the United States Constitution, and his firm has

represented many owners, employees, and customers of adult-oriented businesses, both

online and in the real world. He can be reached in the office at 312 558-6420 or paged

in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com and his

website is http://www.xxxlaw.net/

.Seven Months on the Road with the Webmasters:

The Ten Important Legal Questions that Webmasters and Content

Providers Asked Most in 2001.

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