Content producers, take heart. Some of the confusion surrounding the U.S. Department of Justice’s take on the regulations for enforcing the federal records keeping and labeling act, 18 U.S.C. §2257, has been clarified.
The clarification of six key points in the regulations came as a result of interrogatories submitted in Free Speech Coalition Inc. v Gonzalez, a civil suit filed by the Free Speech Coalition on behalf of its members. The suit seeks to enjoin enforcement of the regulations on several grounds, including their onerous nature and potential unconstitutionality.
In a letter to plaintiffs’ attorneys Louis Sirkin and Jennifer Kinsley dated July 18, DOJ litigator Samuel C. Kaplan laid out what the FSC calls “the official position of the Attorney General” as follows:
- Domestic producers who travel outside the United States to record images of sexually explicit conduct may rely on foreign government issued passports.
- The requirement that a “copy of the depiction” must be maintained does not apply to materials recorded prior to June 23, 2005.
- The requirement that the “date of production, manufacture, publication, duplication, reproduction, or re-issuance” be identified on the label is satisfied by stating the last date of filming, and characterizing that as the date of production.
- Material produced before June 23, 2005, that was compliant with the old regulations may continue to be marketed without fear of prosecution under the new regulations.
- The term “actually sexually explicit conduct” does not include “lascivious exhibition of the genitals” (i.e., mere nudity).
- A website containing no depictions of “actually sexually explicit conduct “ that provides hyperlinks to a third-party website that does contain such material has no record-keeping obligations.
“Most of the clarifications are certainly positive news for the industry,” says Free Speech Coalition Communications Director Tom Hymes, who characterizes Kaplan as “a very nice guy.” “There’s no question that the DOJ is willing to engage in a dialogue with the industry [about this issue].”
Hymes also said industry members and observers who attended the August 2 hearing in Denver “almost felt sorry for” the young federal prosecutor who seemed a bit out of his depth when matched against adult industry legal powerhouses Sirkin and Paul Cambria.
