Is Microsoft exempt from 2257?

[Mr. Billy]

So now we have something looking very much like a tube site with this new search engine.

They are located in the USA. Are they exempt from 2257 record keeping requirements?

Or are these videos somehow not actually on their URL?

[pornlaw]

Link ??? Cant tell without seeing it.

[woj]

Originally Posted by pornlaw

Link ??? Cant tell without seeing it.

http://www.bing.com/videos/search?q=...FD&filt=custom

[cykoe6]

Dammmnnnnnn.........

[Mr. Billy]

Yeah. What a kick huh?

[halfpint]

Never fuck with the mighty Microsoft They will wipe you from the interwebs, send you into oblivion never to be seen again..
fuck they are slow to copy youtube and they have porn .. I was wondering what bing was on my stats ..lol

[Mr. Billy]

I'll bet they hear from a lot of angry parents and soon!

[Mr. Billy]

I'm sorry Pornlaw. WOJ posted the link, but you can go to bing.com and enter porn and search and then click on video. What comes up is something looking very much like a tube site.

[Snake Doctor]

I'm not sure what the law would be. There's never been a prosecution in this area so no case law exists that I'm aware of.

Technically speaking, this is no different than google images, which has been showing hardcore images for quite some time now.

[Snake Doctor]

I'd like to add, M$ and google probably don't take their morning shit without talking to their in-house counsel first, so they probably have a legal opinion that says they can do what they're doing.

This isn't some russian kid with a warez site.

[Mr. Billy]

Yeah you're probably right about that.

[fris]

what i find funny is microsoft has to spend all this money on bing.com commercials to get people to use it, what advertising has google done on tv?

[pornlaw]

Tube sites may actually be exempt from 2257. There hasnt been much written about this, but the comments to the new regs discuss this issue.

I think Google and Bing would fall under the exemption. A tube site where the owners upload and manager their own content -- probably not though.

What I am concerned with in regards to Bing is the ability for the videos to play directly on the site. Not sure how that changes the equation though.

This is a good question and one that I do not think anyone has a definitive answer for.

Something I am going to look into.

[fusionx]

Look how they censor "teen porn"

http://www.bing.com/videos/search?q=teen+porn&form=QBVR

[fris]

Originally Posted by pornlaw

Tube sites may actually be exempt from 2257. There hasnt been much written about this, but the comments to the new regs discuss this issue.

I think Google and Bing would fall under the exemption. A tube site where the owners upload and manager their own content -- probably not though.

What I am concerned with in regards to Bing is the ability for the videos to play directly on the site. Not sure how that changes the equation though.

This is a good question and one that I do not think anyone has a definitive answer for.

Something I am going to look into.

most sites should block hotlinking so it cant, i know yahoo videos did that

[CYF]

Originally Posted by Snake Doctor

I'm not sure what the law would be. There's never been a prosecution in this area so no case law exists that I'm aware of.

Wasn't the "Girls Gone Wild" guy prosecuted for that? Or did he cop a deal?

Wait... Just found this on Wikipedia:

At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc., based in Santa Monica, California, and its sister company MRA Holdings (both owned by Joe Francis), who are the originators of the Girls Gone Wild video series. Francis and several of his managers were prosecuted, citing infractions of this act.[3] In January 2007, these charges were for the most part dropped.[4]

However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.

Also in 2006, the FBI began checking the 2257 records of several pornography production companies

[Snake Doctor]

Originally Posted by CYF

Wasn't the "Girls Gone Wild" guy prosecuted for that? Or did he cop a deal?

Wait... Just found this on Wikipedia:

At present, the Department of Justice has only implemented one specific case based primarily on the new 2257 laws and its supportive regulations. The case was against Mantra Films, Inc., based in Santa Monica, California, and its sister company MRA Holdings (both owned by Joe Francis), who are the originators of the Girls Gone Wild video series. Francis and several of his managers were prosecuted, citing infractions of this act.[3] In January 2007, these charges were for the most part dropped.[4]

However, Francis and the company entered guilty pleas on three counts of failing to keep the required records and seven labeling violations for its series of DVDs and videos before U.S. District Judge Richard Smoak, agreeing to pay $2.1 million in fines and restitution. This allowed Francis to avoid possible harsher penalties which include five years prison time for each violation.

Also in 2006, the FBI began checking the 2257 records of several pornography production companies

I wasn't saying there's never been a prosecution using this statute, I meant there's never been one of a search engine using this statute.

They are probably operating under the assumption that they are in the clear, because the statute specifically states

(2) the term ?produces?? .......

(B) does not include activities that are limited to?

(iv) the provision of a telecommunications service, or of an Internet access service or Internet information location tool (as those terms are defined in section 231 of the Communications Act of 1934 (47 U.S.C. 231)); or
(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; and

[lacuna]

I think the DOJ FAQ are pretty clear:

5. Who is not required to maintain records?
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).

6. How does the rule apply to social networking sites?
Most social networking sites would not be covered by the rule because its definition of ?produces? excludes ?the transmission, storage, retrieval, hosting, formatting, or translation (or any combination thereof) of a communication, without selection or alteration of the communication.? Social networking sites would not then normally need to comply with the rule?s record-keeping requirements, labeling requirements, or be required to maintain information concerning their users, and the rule would therefore have no effect on the operations of the site. However, users of social networking sites who post sexually explicit activity on ?adult? networking sites may well be primary or secondary producers. Therefore, users of social networking sites may be subject to the rule, depending on their conduct.

While none of the services discussed above are "social networking sites", the same principles should apply. For full text, see 28 C.F.R. Part 75 SMALL BUSINESS COMPLIANCE GUIDE, Recordkeeping for Visual Depictions of Actual and Simulated Sexually Explicit Conduct.

[Socks]

How does Clips4sale handle 2257?

Curious about that.. Anyone know?

[lacuna]

I took a look and it appears that their 2257 policy is a "work in progress"... As it stands, it does not appear to meet the requirements. See the last line of http://www.clips4sale.com/do/2257

[baddog]

wow . . .

[Socks]

Originally Posted by baddog

wow . . .

Wow what baddog? You taking lessons from Voa?

[alan-l]

exempt or not, I doubt anyone here will want to sue them

[pornlaw]

Clips4sale, the primary producers and secondary producers on it will have a major problem if DOJ comes knocking.

[hypedough]

Originally Posted by fris

what i find funny is microsoft has to spend all this money on bing.com commercials to get people to use it, what advertising has google done on tv?

Which means this shit won't be around too long.

[V_RocKs]

2257 does not apply to TGP's, tubes or anyone that does not produce the content... It never has and never will.

Has the FBI showed up at the door of a single blog, tgp or social site owner? No... Have they had YEARS to do so? YES!



Be right back... Someone just knocked on my door.

[Socks]

Originally Posted by pornlaw

Clips4sale, the primary producers and secondary producers on it will have a major problem if DOJ comes knocking.

Care to expand? Seems like you should know what you're talking about..

So as I understand it, Clips4sale has a waiver checkbox on their signup that states it's the uploaders responsibility to keep documents. I've seen Xtube do this as well. Just like "we're not responsible, you are responsible for everything you upload, yadda yadda". From there C4S is able to use and sell the content, with no idea if the 2257 documents even exist?

I guess it's kind of a slippery situation. Does the money changing hands between parties change anything?

[iseeyou]

Originally Posted by Socks

So as I understand it, Clips4sale has a waiver checkbox on their signup that states it's the uploaders responsibility to keep documents. I've seen Xtube do this as well. Just like "we're not responsible, you are responsible for everything you upload, yadda yadda". From there C4S is able to use and sell the content, with no idea if the 2257 documents even exist?

I am not lawyer but you are crazy if you think a business agreement or contract or waiver can override any laws or statutes or regulations (unless those laws and statutes and regulations specifically allow to be overridden by private agreements).

A business agreement can help you in a civil dispute but criminal case is very different.

In the case of 2257, you either comply or you don't comply or you are exempt because your activites are not regulated by 2257. A waiver checkbox is irrelevant when you are in criminal court charged with felony 2257 violation. Maybe the judge and jury will feel sympathy for you because you ignorantly believed that a business agreement could override federal law. Even the president,congress, and courts can not legally violate federal laws and regulations. Who do you think you are?

Please correct me if I am mistaken about this.

[seeandsee]

fucking biggest tube site on world!

[Manowar]

google and MS are becoming huge web portals, if you can control the content then you control the ads and the money too

[Si]

Who can make a clone?

[pornlaw]

Originally Posted by iseeyou

I am not lawyer but you are crazy if you think a business agreement or contract or waiver can override any laws or statutes or regulations (unless those laws and statutes and regulations specifically allow to be overridden by private agreements).

A business agreement can help you in a civil dispute but criminal case is very different.

In the case of 2257, you either comply or you don't comply or you are exempt because your activites are not regulated by 2257. A waiver checkbox is irrelevant when you are in criminal court charged with felony 2257 violation.

Please correct me if I am mistaken about this.

No that about sums it up. Though I suspect that C4S's attorneys have advised them that they may be exempt under the new regs. They certainly would not be primary producers however I think a strong argument can be made that they are secondary. C4S would also have to worry about civil unfair competition claims. You cannot set up a network and then blantantly disregard the law and claim it is someone else's problem while you profit. It certainly has given C4S a huge advantage over anyone else.

The same I think would apply to affiliates and programs. However, thats a whole another discussion.

[Socks]

Originally Posted by pornlaw

No that about sums it up. Though I suspect that C4S's attorneys have advised them that they may be exempt under the new regs. They certainly would not be primary producers however I think a strong argument can be made that they are secondary. C4S would also have to worry about civil unfair competition claims. You cannot set up a network and then blantantly disregard the law and claim it is someone else's problem while you profit. It certainly has given C4S a huge advantage over anyone else.

The same I think would apply to affiliates and programs. However, thats a whole another discussion.

Responding to you both at once here.

I wasn't inferring that the checkbox made them above the law. However it IS a great way to politely let uploaders know that 2257 record keeping laws exist, and that it's their responsibility to know about them and abide by them. While it may not protect them, I think it proves they made the producers aware of what's going on.

I don't see how C4S is any different than Google Image Search for example, they're just an intermediary service that allows producers to publish their content. C4S does not own the content, therefore they aren't producers.

However.... C4S haven't made any reasonable steps to ensure the people uploading DO have the documents either, which I believe is part of the law? They may be infringing on that. We all know 90% of these amateur "producers" are going to be like "yeah whatever" and do it anyways - but how is that C4S's fault?

Another question.

When you "license" content and it comes with 2257 photos and waiver forms, that is not the same as the actual record keeping documents that producers must keep on file. It's part of the document, but not the whole thing.

Does that mean that anyone who licenses content is supposed to go through and physically create documents for each and every set they've purchased?

I'm pretty sure that rarely happens from a paysite perspective.

However you don't OWN the content in this case, it's just licensed. What are the differences there, if any? Are you really supposed to make those documents as a licensee?

[Socks]

"You cannot set up a network and then blantantly disregard the law and claim it is someone else's problem while you profit."

I can point you to 50 tube sites that are doing just that?

[WarChild]

Originally Posted by Socks

"You cannot set up a network and then blantantly disregard the law and claim it is someone else's problem while you profit."

I can point you to 50 tube sites that are doing just that?

You can point to 50 sites blantantly disregarding the law or you can point to 50 tube sites operating more or less within DMCA law that you happen not to like?

[Socks]

Originally Posted by WarChild

You can point to 50 sites blantantly disregarding the law or you can point to 50 tube sites operating more or less within DMCA law that you happen not to like?

Yeah you're right I guess I jumped on that too fast..

But for 2257, tube sites and C4S I guess fall into the same category as far as uploaders go, that it's the uploaders responsibility. However I think C4S could "reign in" their uploaders better than a tube site could, therefore maybe they're in a better position going forward depending on how the 2227 laws shape up.

As far as blatant disregard goes, both are turning a blind eye towards whether their uploaders could even have a reasonable expectation of having 2257 records, and something someone else posted let me find it...

From Lacuna's post:

Is a secondary producer required to check identification documents of performers?

A secondary producer is not required to check identification requirements. The secondary producer is required to maintain records that identify the primary producer for any depiction and that verify that the primary producer checked the legal age of performers prior to the date of original production.


None of the tube sites are keeping that information. They don't know who the primary producer was for anything. A legal argument might also be made that they regularly find accounts that have videos from MANY different producers uploaded by the same person, and they know better, and are blatantly disregarding it anyways. In fact they probably don't even delete the whole account most times, but rather take off one of the 50 videos that was complained about, leaving the other 49 infringing videos online.