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Confirmed User
Join Date: Feb 2007
Location: Los Angeles, CA
Posts: 1,876
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Did you forget this section of 28 CFR 75.1 ?
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(c)(2) Secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing. When a corporation or other organization is the secondary producer of any particular image or picture, then no individual of that corporation or other organization will be considered to be the secondary producer of that image or picture.
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and this part of 28 CFR 75.2?
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(b) A producer who is a secondary producer as defined in §75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in §75.1(c), copies of the records described in paragraph (a) of this section. Such a secondary producer shall also keep records of the name and address of the primary producer from whom he received copies of the records. The copies of the records may be redacted to eliminate non-essential information, including addresses, phone numbers, social security numbers, and other information not necessary to confirm the name and age of the performer. However, the identification number of the picture identification card presented to confirm the name and age may not be redacted.
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Secondary producers are not excluded from record keeping requirements. Matter of fact this version of 18 USC 2257/28 CFR 75 makes it necessary for secondary producers, ie., affiliates, to maintain records.
The DOJ put out a small business compliance guide with the new regs. Here is a relevant portion of that guide.
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Q. Who is required to maintain records?
A. Both primary and secondary producers of covered materials. A primary producer "is any person who actually films, videotapes, photographs, or creates a digitally- or computer-manipulated image, a digital image, or a picture of, or who digitizes an image of, a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct." 28 C.F.R. § 75.1(c)(1). A secondary producer "is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, or digitally- or computer-manipulated image, picture, or other matter intended for commercial distribution that contains a visual depiction of an actual human being engaged in actual or simulated sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the sexually explicit content of a computer site or service that contains a visual depiction of, an actual human being engaged in actual or simulated sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing." 28 C.F.R. § 75.1(c)(2).
Q. Who is not required to maintain records?
A. Individuals or entities are not covered producers if their role with respect to covered materials is limited to photo or film processing; distribution; services that do not involve the hiring, managing, or arranging of the participation of depicted performers; providing telecommunications or Internet services; transmission, storage, retrieval, hosting, formatting, or translation of a communication, without selection or alteration of the content of the communication; or dissemination of a depiction without selection or alteration of its content. See 28 C.F.R. § 75.1(c)(4).
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Affiliates would not be considered a mere distributor since there is a process of selection in determining which content is to be used.
And here is the interesting part of this for programs that do not give their affiliates the docs and IDs... "including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing."
I can see the DOJ/FBI going after a program under the "conspiracy" theory they set forth in the language of the law if that program doesnt give the affiliates the necessary docs/IDs. Failure to give the docs/IDs could be a criminal conspiracy, and then it gives the DOJ/FBI the power of RICO to come in and start seizing assets.
If anyone remembers, the DOJ/FBI used RICO to seize buildings owned by a company that had several adult stores in which it was determined by a jury that a only a couple of movies were "obscene." RICO is a nasty powerful statute for the government to use and in this day and age of the deficit I would be worried about them using it again in the context of 18 USC 2257.
Here's a footnote from Sequoia Books decided in 1990...
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Though it is not part of the record in this case, the Attorney General's Commission on Pornography recommended that state legislatures enact forfeiture provisions tied to obscenity violations and cited with approval the use of one such provision to obtain forfeiture in one case of property worth up to $100,000, including two computer systems and two projection screen televisions. Attorney General's Commission on Pornography Final Report 497-498 (July 1986)
In 1984, Congress expanded the definition of "racketeering activity" within the Racketeer Influenced and Corrupt Organizations Act (RICO) to include "dealing in obscene matter." Pub.L. No. 98-473, Sec. 1020(1), 98 Stat. 2143, codified at 18 U.S.C. Sec. 1961(1)(A). As highlighted in Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 109 S.Ct. 916, states such as Indiana have followed this pattern closely, adding obscenity violations to the list of predicate offenses listed in the state's RICO statute. Justice Stevens, in his dissent and partial concurrence to Fort Wayne Books, lists the states that have taken this path. 109 S.Ct. at 938 n. 28.
As noted below, however, in the context of discussion of United States v. Pryba, 900 F.2d 763 (4th Cir.1990), it is important to distinguish the provisions at issue in this appeal from the federal RICO forfeiture provisions and imitative state provisions, which call for forfeiture of "any interest" gained or used in connection with a racketeering enterprise.
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And here is the definition of distribution according to 75.1
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(ii) Distribution;
(iii) Any activity, other than those activities identified in paragraphs (c)(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;
(iv) The provision of a telecommunications service, or of an Internet access service of Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231));
(v) The transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the content of the communication, except that deletion of a particular communication or material made by another person in a manner consistent with section 230(c) of the Communications Act of 1934 (47 U.S.C. 230(c)) shall not constitute such selection or alteration of the content of the communication; or
(vi) Unless the activity or activities are described in section 2257(h)(2)(A), the dissemination of a depiction without having created it or altered its content.
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The definition specifically excludes (C)(2) - which are Secondary Producers. |