LAS VEGAS - First Amendment attorney J.D. Obenberger kicked off his Internext class with a brief civics lesson. The "liberty" emblazoned on American money and other cultural icons stands for "liberty from government," he intoned solemnly. With that in mind, he talked with the audience about the liberties adult businesses should enjoy in society but unfortunately often see eroded by a government drunk on the powerful aphrodisiac of its own self-importance.
Although seemingly mesmerized by Obenberger's stylish oratory, the audience eventually became actively involved in the discussion of 18 U.S.C. §2257, the U.S. labeling and records-keeping law governing sexually explicit materials. Changes made to the law and associated regulations in June 2005 and July 2006 added what Obenberger called "onerous" requirements of the routines of adult entertainment impresarios, but for the time being, at least, it's best for every producer to comply with them to the best of his or her ability, Obenberger said. Splitting hairs and challenging the government with 2257 compliance statements that begin with wording like "We strongly disagree with the government's heavy-handed restriction of our First Amendment rights, but in order to comply with the law, we have to tell you that…" may not cause harm, but they certainly don't help the situation.
Among the most outlandish of the changes to 2257 came in 2006, Obenberger noted, and probably resulted from the Free Speech Coalition's legal challenge to the 2005 changes. The latest incarnation of the recordkeeping law adds "lascivious exhibition of the genitals" to the list of explicit activities triggering documentation requirements, specifically includes secondary producers among those who must keep records, provides criminal penalties for producing (and not just distributing) "obscene materials" and for deceptive marketing of adult entertainment, regulates simulated sexual activity, imposes criminal penalties for refusing to allow records inspection, and requires 2257 notices on all pages of websites. New regulations for enforcing the statute are expected to be made public within the first quarter of 2007, Obenberger said.
All is not lost, however, Obenberger noted: There are several areas in which the regulations are weak and could be overturned. Among them are burdensome data retention and hours of inspection regulations, regulations applying to overseas production vis-à-vis domestic records and IDs, questions about what is meant by "date of production," and vague identification of who is empowered to conduct records inspections. Obenberger also said it is possible hosting providers and so-called "community sites" will raise a cry about provisions that name as mandatory records-keepers anyone who inserts on a computer site or service or otherwise manages explicit materials.
Among the "best practices" guidelines Obenberger espoused were encoding a 2257 notice on each video clip taken from a larger, covered work (it may be a federal crime not to do so, he noted) and declining content one can't encode to comply with the regulations (as in the case of video licenses that forbid altering an original work). Popular scenarios that are unlikely to work include claiming protection under the "secondary producer" clause of the Sundance decision, cropping out or obscuring explicit areas of images, and using a mail drop instead of physical address, Obenberger added.
