Ruling In Fsc 2257 Challenge
 

DENVER, CO -- United States District Court Judge Walker D. Miller has granted a preliminary injunction against enforcement of certain key provisions of U.S.C. 18 §2257 as regards FSC members. The ruling is currently being assessed by the FSC legal team and an analysis of the ruling will be made available as soon as possible on the FSC website. Initial readings of the ruling are heartening, especially for FSC members who fall in the category of so-called hahaha147;secondary producers.hahaha148; Until there are further legal proceedings, such as a trial or appeal process, or until there are further orders by Judge Miller, the government may not enforce §2257 against FSC members whose hahaha147;activities do not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performerhahaha148;; in other words, those who are not the primary producers of sexual materials. This is in line with the 1998 10th Circuit Sundance v. Reno decision which many secondary producers, such as webmasters, have relied on -- and properly so, according to Judge Miller -- in deciding that secondary producers did not fall under §2257 record-keeping requirements.
In addition to the injunction against government prosecutions of secondary producers, FSC scored a crucial victory in convincing Judge Miller of the substantial likelihood that requiring producers to maintain URLhahaha146;s for websites that are outside their control will be found to be overly burdensome. FSC attorneys also convinced Judge Miller of the substantial likelihood that the mind-boggling government insistence that chat rooms should have to store huge video recordings of chat room activities will be found overly burdensome. As a result, under this injunction, for now, the government may not enforce §2257 against members of FSC with regards to websites they do not control, or against FSC members as regards keeping video records in the operation of Internet chat rooms. Please note that the foregoing injunctions cite specific clauses of the revised §2257 and will need careful analysis by FSC attorneys to clarify the exact nature and full implications of the ruling.
FSC plans just such a timely clarification at the membership meeting in Las Vegas on Thursday, January 5, 2006, in Room 403 of the Sands Expo, Las Vegas, Nevada, adjacent to the Venetian Hotel and Casino. By then, FSC attorneys will have had time to analyze the ruling and will be in attendance to answer questions.

thanks for posting. A tiny bit more info in that one than some of the others.

... and let me just add this:

While the ruling applies only to FSC members, it is clear that with this ruling, if the DoJ came knocking on your door a secondary provider looking for 2257 information, you could pull this judgement out along with a list of your content providers, and tell them to do the legal version of piss up a rope. It isn't as technically safe as being part of the FSC, but a ruling is out there, and the DoJ is very unlikely to try to do anything that would go against this ruling.

A happy day for all secondary producers, chat room operators, content resellers, and program operators that give free content.

Alex

So it basically says as a primary producer, if I have a url missing I can still go to jail or if Im not in my office when they come knocking I can go to jail. I am a member of FSC and it hasnt done much for me. My thought is this is what the big supporters of the fsc wanted: one to protect their affiliates and two to drive out the mom pops.

Dont you just love the irony :1orglaugh

Regards,

Lee

I think it is bullshit. All secondary producers should be protected. Not just the ones that paid for protection. I didn't sign up to FSC because I don't want my name on a hit list when the shit could potentially hit the fan.

same here.
123456

As a non-American I find it very odd (but not all that surprising) that you guys can join the FSC and BUY your way out of complying with a law!

WEll I've seen different lawyers all basically post that the regulations aren't just applicable to FSC members, so the benifits will apply to everyone subject to the laws. Anyone hear differently?

From what I have read, this only applies to FSC members. Now I am not sure if this is true or I am misreading something or simply just an attempt to get more members for FSC. I wish someone had a definitive answer to this.

It sets a legal precedent. go look the word up. doesnt fucking matter if you've paid off the FSC or not, it's there.

are you high?





show me ONE country in the world that that has not or will not happen on a daily or weekly basis...

the foundation of law is riddled with corruption at all levels and is highly influenced by people and institutions with money...


PS: Tell the easter bunny I said hello

The 1st was probably WRITTEN BY the FSC, which is why it's leaning so heavily toward "FSC members"

It is good news for everyone. Whether you joined the FSC as insurance or not. DOJ could, but probably won't, pursue non-FSC members.

Yep, I was right. This was an FSC Press Release, which you can read at the top of their page.

http://www.freespeechcoalition.com/n...er12-30-05.htm

Do you have a link to any article that says otherwise? I would love to start posting some hardcore samples again. I haven't been using screenshots on my review site since this whole shit began.

Question for all non FSC members. Are you going to go back to posting hardcore based on this ruling even though you are not FSC members?

According to this AVN article, non FSC members are not protected.
http://www.avn.com/index.php?Primary_Navigation=Articles&Action=View_ Article&Content_ID=252970

However, producers of sexually explicit content should pay close attention to the following sentence from the opinion: "Defendant is enjoined, pending the outcome of these proceedings or further order, from treating any of the Plaintiffs or members of plaintiff Free Speech Coalition as 'producers' under 28 C.F.R. part 75 or persons or entities 'produc[ing]' any book, magazine, periodical, film, videotape, or other matter containing one or more visual depictions of actual sexually explicit conduct under 18 U.S.C. §2257, to the extent that plaintiff or member of plaintiff Free Speech Coalition's activity does not involve the hiring, contracting for, managing, or otherwise arranging for the participation of the depicted performer."

While the above phraseology is somewhat unclear, it appears to say that the judge's ruling regarding "secondary producers" only applies to the lawsuit's plaintiffs ? Free Speech Coalition, New Beginnings and Dave Cummings ? and to members of the Free Speech Coalition. It is therefore possible that the government may attempt to enforce the recent 2257 regulations against any "secondary producers" who are not Free Speech Coalition members.

The judge backing up what Sundance brought. And ..

What you posted doesn't necessarily mean secondary producers are at risk, but that the Defense can't treat FSC members as 'producers' that contradicts Sundance. There's plenty in the opinion supporting Sundance and that applies to everyone, not just FSC while specific parts are directed toward FSC members.

I think what gets everyone all twisted up is when FSC introduces a lot of spin and marketing with their statements. Like if you aren't with them, you're against them or that the Defense is going to start prosecuting secondary producers even though there's a very clear opinion by the Judge that Sundance is going to be supported.

You end up with FSC statements like:

In any event, I think FSC is working for some important change in the industry's favor and should be supported. Membership is cheap too.

is this good or bad?

It protects the FSC members ONLY...

HOWEVER the goverment is HIGHLY unlikely to prosecute while there is an injuction in.

So it doesn't matter if you've been a spineless freeloader or you've donated a lot of money and time...

99.9% Chance: Nobody is going to come knocking at your door.

Stop whining.

Thanks Jay

An injunction is not precedent. If the DOJ were to show up tommorrow at someone's door who is not an FSC member, you could not wave this injunction in their face as it is not binding law. No actual case law has been set by an injunction finding, all that was decided by the Judge was that there was a strong likelihood that under the current case, in the current jurisdiction (colorado) that yes the DOJ would lose and as such while the case is pending the Judge is not allowing the prosecution to go forward for the parties in the case. If you are a non-FSC member in a different jurisdiction, then it is certainly not a given that you would win an injunction hearing. Alot of the win in Court recently by the FSC can be attributed to their initial strategic planning of venue since their was good case law on the books (Sundance).

People here seem to have the attitude that this is somehow a form of discrimination. If the FSC ultimately wins, the win will be for everyone. Court systems worldwide are no different, an injunction in the UK would operate the same way. Its a pretty simple rationale to understand: You have to be part of the risk to reap some rewards.

The DOJ has a list already of who it wants to prosecute. You are not thinking clearly here if you believe that they will chose an FSC member, rather than the candidates on their short list of Bad Guys. By not supporting the FSC financially, you actually are increasing the chance that you will be prosecuted. Look around, there is no one else fighting this war for you. At some point you have to climb aboard and fight with us and face the fact that you are by yourself.

"By not supporting the FSC financially, you actually are increasing the chance that you will be prosecuted."

That is pretty bold of you to say something like that.

So I have Jay saying that not to worry and Scoreman trying to scare me into signing up to FSC.

" If you are a non-FSC member in a different jurisdiction, then it is certainly not a given that you would win an injunction hearing."

What about if you are a FSC member in a different jurisdiction? Isn't this injuction only good in the Colorado jurisdiction? I wish someone had the real facts and not put a spin on it to pressure someone to donate to the FSC.

That's not a bold statement, its just the truth and sometimes the truth is not comfortable. Think this through, if you had supported the FSC you would now be 100% free from prosecution on the new 2257 regs until this matter is settled. You have increased the chance you will be prosecuted.

The FSC may run out of funding or run short. I do not know the size of the war chest, but one thing for certain is defending a full blown case like this isnt cheap. I also don't know the size of your company and whether your membership would have been the money that could have secured a critical piece of work done in the litigation. One thing I do know is that the fewer dollars in the FSC war chest, the harder it becomes to win this fight. If the fight is lost you have dramatically increased the chances of you being prosecuted.

The rationale you give for bowing out when the call was made for support is that you didn't want your name on a list. The DOJ received a good sum of funding in Bush's first term to prosecute porn and all of those Government lawyers have been hard at work for YEARS now, investigating and compiling their short list of "Bad guys". The idea that they would put aside this list to prosecute Mr. Pink because he joined the FSC is absurd, unless you are already on their list.

scoreman, conversely, if he isn't a bad guy and didn't figure highly on any lists, becoming part of the organization directly opposing the DoJ and finacially supporting it could "move him up the list". Your logic cuts both ways.

Additionally, the DoJ would find themselves on the losing end of any attempt to prosecute ANYONE on the basis of secondary producer status at this point, and would likely find themselves facing the wrath of the courts if they tried. The DoJ knows clearly that a federal judge has ruled that FSC is likely to win an injunction on certain points, and that Reno v Sundance is on point on many issues and stands. Any attempt by the DoJ to use the secondary producer "rules" that they created out of thin air to go after anyone would be a slam dunk loss - and the DoJ doesn't take on slam dunk loss cases.

Why do you think that nobody has been chased down on this issue? Because they know better already.

Orrin Hatch is going to attempt to change all that, with regulations that would punish not only the porn industry but mainstream television, movies, and magazines.

It ain't over til it's over.

Alex

Alex, I am not disagreeing at all that the likelihood of prosecution is slim. You have to remember though that the secondary producer section was slammed in Colorado because of precedent in the Sundance case. Another jurisdiction would not be obliged to follow this caselaw. Certainly any defendant would seek to get his/her case moved and consolidated with the Colorado case, but then again you are looking at hearing$ galore$$$.

I posted this before but I will cut and paste it in here:

I do agree that there is a potential for the prosecutors to get a very negative response from another jurisdiction since this case is ongoing and some results have already been reached. The potential to have their asses handed to them in a very public manner certainly will chill the desire for the DOJ to prosecute.

On the other hand, if I was a prosecutor who detested Company A's business, their business was in a jurisdiction with friendly law on the books, and I wanted to break a "bad guy" down financially, well yeah it would be worth considering. Remember that to get to a similar result that the FSC has reached will require significant legal funding, and maybe the Feds might just choose a small guy who they know doesnt have the backing to withstand a full court DOJ press. Maybe if I was a prosecutor, I could use the 2257 as a vehicle to just toss the place and look for evidence of other crimes. It doesnt mean I have to actually prosecute 2257 but the law allows me to knock on his door and be let in...

Bottom line IMO is if you are not an FSC member, now is not the time to be asleep at the wheel when it comes to records and you be wise to reaffirm that all aspects of the your business can withstand some level of scrutiny by government agents.

"becoming part of the organization directly opposing the DoJ and finacially supporting it could "move him up the list".

That is exactly what I am thinking.
:thumbsup