If a state or federal agent knocks on your door and asks the question, “Where did this specific picture come from?” because they believe a picture of yours to be obscene or underage, could you answer the question?
Most Webmasters would point the agent to their 2257.html page as their answer. The agent would look at the page and see a list of content producers, then turn back to the Webmaster and say, “You didn’t answer my question; I asked, ‘Where did you get this specific picture?’”
Since the Webmaster would not be able to point to the specific content provider, s/he would violate 18 U.S.C § 2257, that can be interpreted to mean the secondary record keeper (the Webmaster) is required to be able to identify exactly the primary record keeper (the content producer).
The scenario above has not been played out yet, but it is a real possibility. Attorney General Ashcroft now has 2257 in his vocabulary, and an already broadly written statute that could allow him to shut down the “frontline of obscenity” by asking the above one simple question that plays into Webmasters’ poor 2257 record-keeping habits.
Attorney General Ashcroft has released updates to 2257 that are of particular concern to Webmasters who are secondary record keepers. The following are proposed changes to the 2257 statue (as of July 1, at the time of this writing; full text can be found at http://www.regulations.gov/freddocs/04-13792.htm):
• To bring the regulations up to date with the 2003 Amendments, the definition of a producer has been modified in proposed 28 CFR 75.1. Persons who manage the content of computer sites or services are considered secondary producers.
• A secondary producer is any person who produces, assembles, manufactures, publishes, duplicates, reproduces, or reissues a book, magazine, periodical, film, videotape, computer-generated image, digital image, or picture, or other matter intended for commercial distribution that contains a visual depiction of actual sexually explicit conduct, or who inserts on a computer site or service a digital image of, or otherwise manages the content of a computer site or service that contains a visual depiction of, actual sexually explicit conduct, including any person who enters into a contract, agreement, or conspiracy to do any of the foregoing.
• Proposed 28 CFR 75.2(a)(1) would require computer site or service producers to maintain a “hard” physical or electronic copy of the actual depiction with the identification and age files, along with and linked to all accession information, such as each URL used for that depiction. This ensures that all of the data about all of the people in the depictions can be accessed to ensure that none of the people in the depictions are minors.
• A producer who is a secondary producer as defined in Sec. 75.1(c) may satisfy the requirements of this part to create and maintain records by accepting from the primary producer, as defined in Sec. 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 s/he received copies of the records.
A quick summary is that a Webmaster is the “secondary record keeper,” required to keep identification records of the models used in the images and videos on the Website, while cross-indexing each image URL to the content producer and model, to be able to answer “Where did this picture come from?” and “Show me the documentation.”
My interpretation of 2257 with regard to a Webmaster’s secondary record keeper responsibilities is shared by legal experts. The 2257 statues are broad and vague, and the application of the 18-year-old statute hasn’t been tested yet.
There are many misconceptions about 2257 on the part of both content producers and Webmasters. Consultation with an attorney familiar with 2257 issues is obligatory, especially if you are a content producer. A good 2257 primer, written by First Amendment attorney J.D. Obenberger, can be found at http://my.execpc.com/~xxxlaw/primer.html.
“... [T]here is no guarantee that ‘secondary producer’ prosecutions,” he writes, “will not commence against Webmasters who purchase all of their content in bulk from providers, as is. Each court that has tackled the issue has concluded that the Attorney General’s concept of a ‘secondary producer’ is invalid and outside the law, and I agree with those courts; but here is no guarantee that the exceptionally well-reasoned opinion of the Tenth Circuit and the consistent view of the District of Columbia Circuit will be followed by federal courts in the Midwest or in the South. Like the risks of obscenity prosecution, any Webmaster who publishes explicit images to the Internet without complying fully with all of the affirmative duties of Section 2257, just as though s/he had created the images, runs some risk of prosecution outside the Tenth Circuit for violation of the regulation, even though the clause which purports to make that Webmaster a producer was held declared invalid in Sundance.”
I have seen many 2257 pages on Webmaster’s sites, and many of them are simply cut-and-pastes from other people’s 2257 pages, including the content producer information where those images aren’t on their site. Other instances have shown contact information to be incorrect or referencing P.O. Boxes, both of which demonstrate non-compliance.
Michael McCoy of McCoy & Associates in Austin, Texas and general counsel for Cydata Services Inc. (owner of 2257lookup.com) says that “For the time being, the simple rule for Webmasters regarding 2257 compliance is that the closer you are to the camera, the higher your level of responsibility. There is no question that Webmasters who produce their own content containing sexually explicit conduct are ‘producers’ under the statute. However, those Webmasters who have no direct contact with the performers in the material or who do not directly contract with the production agency for its creation are not within the obligations to maintain age verification records under Sundance Associates, Inc. v. Reno, 139 F.3d 804 (Tenth Cir., 1998).
“While there is uncertainty regarding the Sundance decision insofar as it only binds federal courts within the Tenth and D.C. Circuits, it is likely that other courts would follow its reasoning. However, separate and aside from the obligation to maintain age verification records, is the responsibility to ensure that a custodian of records disclosure statement is properly associated with each qualifying depiction. And it is quite clear that duty is placed upon everyone right up to the consumer, including Webmasters.
“For the adult Webmaster, this means that it must be readily ascertainable to a federal investigator who the custodian of records is for a particular unit of content. While most Webmasters simply publish a listing of all disclosure statements received from their content sources, it does not solve the problem of being able to discern the custodian of records for each respective depiction.
“Does that mean that a quick retool of a site to properly associate custodian of records disclosures with respective content will obviate fear of prosecution? Hardly. Adult Webmasters are still subject to significant criminal penalties for the display of underage models. The resulting recommendation is that adult Webmasters voluntarily comply with the provisions of 2257 or develop procedures for age verification, including the review and confirmation of records maintained by the sources of their content.”
One solution to Webmasters’ method of renaming files and not being able to keep track of where image sets are licensed from is my new venture at 2257lookup.com.
2257lookup is a service supported by content producers to assist Webmasters with their secondary record keeper responsibilities. 2257lookup (parent company Cydata Services Inc.) utilizes technology that can make comparisons of images to find a match, regardless of the size or resolution of the image.
Content producers (as of July 1) such as Matrix Content, Falcon Foto, Paul Markham, Focus Adult, Titan Media, Max Pixels, Ounique, Zmaster, Medium Pimpin, and many more participate in the program by allowing all of their content to be indexed. Each picture is identified by proprietary alphanumeric values that allow for searches via database lookups.
A Webmaster can upload a picture to the 2257lookup.com Website, and within two minutes be notified as to who is the content owner and/or primary record keeper for the image. The 2257lookup.com service charges a small transaction fee when a match is found.
A scan of a Website could reveal 10 sets from Falcon Foto and 10 sets from Matrix Content, but the Webmaster may find their licenses don’t match the number of sets found. The 2257lookup report can help the Webmaster “get legal” by contacting the content producer to purchase the missing licenses.
In addition, 2257lookup includes exclusive content producers like Titan Media, whose images should only be found on their TitanMen.com Website. Titan Media is participating with 2257lookup to allow Webmasters to “self check” and eliminate copyrighted, unlicensed materials. Upon a match of exclusive content, the Webmaster will be notified which images should be taken down, in a manner that is private and confidential. Companies like Titan Media are very aggressive in protecting their copyrights, but also want Webmasters to be proactive in ensuring copyrighted content isn’t being illegally displayed. Webmasters who are using unlicensed images or images that are exclusive to another Website are setting themselves up for copyright infringement lawsuits.
The content producers in the 2257lookup service are participating because they share my concerns regarding how Webmasters could be targeted for 2257 violations. All of the participating content producers want to give Webmasters the ability to “get legal” by allowing them to self-check to ensure they have the correct amount of licenses and are not using any exclusive content. By being proactive in the 2257/copyright area, Webmasters can avoid criminal and legal action.
Brandon Shalton is the founder of Cydata Services Inc., which has created the 2257lookup service. Content producers are invited to participate in the program at no cost. Webmasters are encouraged to use 2257lookup by visiting www.2257lookup.com. Brandon is also the volunteer CTO for ASACP and is the creator of FightThePatent.com.
