Tuesday, April 3, 2007

The latest in Free Speech Coalition v. Gonzales

If you're involved in any way in the production of pornography, and you haven't read up on the recent happenings in the Free Speech Coalition's attempt to challenge 2257 record-keeping laws in the Colorado District Court (aka Free Speech Coalition v. Gonzales), you may want to do that now. IANAL, and reading this article is no substitute for good legal advice from someone who IAL, but it's in all of our best interests to keep current.

On its face, this recent ruling is a setback for the FSC's efforts, but Judge Walker Texas Ranger D. Miller did clarify certain previously-contentious parts of the new 2257 regulations. The highlights:


  • "A copy of the URL" means a simple link, not a copy of the site itself.

  • "A copy of the depiction" can be the DVD which is the final product, or a copy of the website on which is the final product, as applicable. Hmmm. Would a VHS work? I don't see why not. I could see some pornographers keeping their "copy of the depiction" on Betamax, just to spite the FBI. "You want to see it? Here you go. Hey, it's not our fault you don't have a Beta deck!"

  • The date that appears on the 2257 compliance statement can be the date of production, manufacture, publication, duplication, reproduction, or reissuance -- any one will do. That makes things easier for, say, compilation DVDs, or websites which archive lots of content.

  • And here's the biggie: While producers do have to keep copies of the IDs of performers on file, they're allowed to blot out the day and month of the performer's birthdate and the performer's SSN and home address on those copies. That's a huge deal -- otherwise, think of the potential for identity theft and stalking if and when those records are released to "secondary producers", including retail outlets -- and I think it'll make the new 2257 regs a lot more palatable to people.

Obviously, this case has a ways to go, so keep your ear to the ground. Staying informed protects yourself and all the rest of us, too.

ETA: The FSC has released a statement on this ruling, saying pretty much exactly what you'd expect, here.