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Baying At The Moon The Trials and Tribulations of BayTSP

Baying At The Moon The Trials and Tribulations of BayTSP

Started in June of 1999, BayTSP (

A recent case makes it ominously and vividly clear why.

On October 30, in McHenry County, Illinois, sheriffs officers, acting on a tip, seized computers and documents from the home of Mike Jones, who runs a company called L&M Enterprises. Jones sells porn on CDs, produces some of his own content, and has been known to use young models, though no one has ever intimated that any of them are under age. Three weeks later, no arrests had been made - which presumably means the County State's Attorney couldn't (at least, not at the time) make a viable obscenity or child porn case - but our sources tell us that local law enforcement had been calling around the country asking for details regarding the 2257 federal labeling requirements. If this is true, what it implies is that they want to get this guy and they don't care how. If they can't nail him with obscenity, they'll find something else, and, as has been pointed out in ia2000 seminar after ia2000 seminar, 2257 is far easier to prove than obscenity.

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"Anyone who knows Mike Jones knows that his photography is conservative, well within the bounds of the law, and that he keeps meticulous records as required by 2257. Mike Jones doesn't take chances. It's not even a serious doubt. My belief is that he'll get a clean bill of health on the whole thing," his attorney, J.D. Obenberger, told AVN Online.

Mike Jones may have covered his own 2257 ass, but what about the webmasters who have used his content on their websites? According to the code, if the cops who have confiscated Jones' documents follow a trail to the door of one of those webmasters, and ask to see copies of the same age-verifying records that Jones showed them, and the webmaster can't produce them, they are in violation of 18 � 2257. There are of course a few high-profile attorneys out there (and you know who you are) who point to the Sundance Decision in the 10th Circuit Court of Appeals to justify their opinion that webmasters do not have to comply with the record-keeping requirements. That decision overturned the Attorney General-implemented CFR (Code of Federal Regulation) that says that webmasters are considered secondary producers and also need to comply. But that decision is binding only in that Court's jurisdiction (several Western states) and not complying could be considered an awfully big risk for webmasters who don't live there.

According to Mark Ishikawa, CEO of Bay TSP, such legal advice is, to say the least, irresponsible. "I ask them if they realize that they are giving misinformation to their clients. I never get a good response. They say, no, this is my opinion, but if you read the law, it's black and white. Think of it: a prominent First Amendment attorney who has his opinion spread over a lot of webmaster resource boards, who says you don't need to worry about it. So his interpretation is that he can probably get you out of it, but he'll have to appeal it after your conviction. Meanwhile, you're convicted, and now you have to go and try and fight it without any money or assets, because they'll freeze it all. The money flow will stop. But if you had spent a little money and gotten our product, you wouldn't be running into that situation in the first place."

The Numbers

Mark Ishikawa is a really bright and affable guy. I think of him as a hacker who doesn't hack. In other words, he has the capabilities but doesn't use them - unless you mess with him. He told a story about how, in a previous life, UUNET, the global ISP that controls approximately 30-35\\% of the Internet backbone market, blocked his sites - something they are apparently prone to do if they don't like you. Most people would panic, call their attorney, and begin legal action. Ishikawa says he turned the tables on them and shut them down. In no time, his sites were back up. I asked him how he did it, but he just smiled.

This conversation took place at 6000 feet in his single-engine Cessna. He was flying, I was cringing, and Stacy Boyd, then-managing editor of

It was more than clear from these demonstrations that, as far as the technology goes, BayTSP has the goods. The numbers tell the story:

* Their servers can download

* It takes

*

*

*

*

*

*

What is surprising, however, are these numbers:

* Approximately

* No adult webmasters use BayTSP 2257 software.

20-25

Unsafe At Any Speed

There is one other very interesting number. According to attorney Robert Sarno, "Based on my review of current record-keeping, my estimate is that 95 percent of the adult industry is not in compliance with the record-keeping requirement of Section 2257." What this means is that, whether they are content producers or individual webmasters, there are a lot of people putting themselves at risk. A webmaster convicted of failing to comply with Section 2257 could face from two to five years in jail.

I asked Chad and Craig, two of Ishikawa's salespeople, what sort of responses they were getting from prospective clients. "I've had people tell me that they have more chance of getting hit by a car on the freeway than someone coming in and getting them on 2257, "said Chad. "So people aren't being compliant on it because there is no enforcement of it. But 2257 is going to be the easiest way for law enforcement to get into the industry."

Craig said that at ia2000 in New Orleans, lots of people were interested. "They like the technology," he said. But when he followed up afterwards... nothing. "I even had a fairly large content producer tell me that until the first person gets prosecuted for 2257, he's not even going to be bothered with it. When that happens, though, he'll be first in line."

Chad agreed. "There is no enforcement. If there's no enforcement, you don't care. If they were enforcing the laws, yeah, these people would care, but they're not enforcing them." He added though, that, "if law enforcement comes in and they start hitting the 2257 laws, they're not going to go after someone large. They'll go after somebody small, who can't afford to pay for lawyers and can't fight it."

"It's like speeding," Ishikawa interjected. "You know that if you go to Nevada and go a hundred and fifty miles an hour, you're not going to get a speeding ticket. Of course you're going to speed. So because the cops aren't out there chasing them down, everyone feels that they don't have to be compliant."

But apparently, many adult content producers are also loathe to invest in protecting their own content. "Everybody wants to talk about how they want to protect their stuff, how they don't want anyone to steal their work, but they're absolutely not willing to pay for it," said Ishikawa. "That's the reason I've redirected my salesmen more toward mainstream, because the adult guys won't do it. They say if it's free, they'll do it. But they're not willing to pay for it. The ones who are compliant have more of a business plan. These guys are here to stay and they feel that if the Big One hits, that if they are compliant, they'll be one of the last one's standing and the money will come to them. So they're investing in their future."

Sweet

One content producer who does ante-up with BayTSP is the Sweet Entertainment Group (

Sweet said that the spidering program has been very effective. "Right now they've been primarily targeting the news groups. They've found several-hundred infractions, and we've been very successful to date settling things out of court." He added that, "we have one court case for copyright infringement against Personal Porn that's on a very large scale. It started back in the summer of 1999 and we're still in court. They actually infringed upon about twenty different producers. Everyone else settled for a few thousands dollars, and we weren't prepared to do that. All the while they're making money and refusing to settle with us, so we launched a million-dollar lawsuit against them."

As far as the amount of copyright infringement occurring in adult Internet, he said, "We're finding it's getting worse. In the last six months we've had some very high-end companies infringing on our rights. I just think they're lazy, and that they don't keep very good records." But regarding labeling compliance, he said, "When it comes to 2257, it's actually kind of vague. There's lots of discussion about what counts as a secondary producer. But it's definitely something that we feel is worthwhile if it gives our customers an added bit of protection. We're in Vancouver, but the majority of our customers are U.S. based, so we obviously follow the rules and regulations and we've been very happy with Mark Ishikawa and the people down there. I think they've got a great product, though I don't think the adult industry's come on board heavy enough with it. Making sure you're legal is an important thing, wouldn't you think?"

So What's the Problem?

We contacted several other content producers to see how they felt about BayTSP or 2257 or anything having to with the issues that this particular software addresses. The responses were pretty interesting.

Greg Clayman, president of Videosecrets and VS Media (

Joseph Kelley runs Media 21 (

Andy Edmond of Flying Crocodile (

"We feel that the infrastructure for BayTSP and the concept for BayTSP is the most intriguing piece of legislative compliance technology that we have seen on the Internet thus far. However, it doesn't exactly meet our needs at the present time. We would highly recommend any content provider to bring value to their own content, to purify the exclusivity of their content to their customers. And once enough content providers sign up, you're going to see enough major ISPs like me, because of our ethical needs and wants, use the BayTSP software on behalf of the providers. As soon as there are ten million pictures in there, I'm going to use that thing like there is no tomorrow."

www.flyingcrocodile.com

Ishikawa

Mark Ishikawa doesn't disagree that more content providers need to sign on. "We are adding content producers very rapidly. We are also looking for a pilot-project with some of the free-hosters. We noticed at the New Orleans ia2000 that the content people were really ticked off with the free-hosting world, and we offered our solution for free to these guys to help manage and try and bring the situation under control. Without our system doing something, it's another typical adult trade show where everybody talks about how they have to do something about it, but nobody does anything. Our current database [for identifying child porn on the Internet] is somewhere in the 20,000 - 25,000 image range, which isn't huge right now, and I know that, but that database is always increasing."

"These adult webmasters have to understand. They're sticking their heads in the sand right now." Ishikawa said that he's offered Andy Edmond a free program to help clean up the copyright and kiddie porn problems on the sites that Flying Crocodile free hosts, of which he says there are many, but wasn't taken up on it; Ishikawa does acknowledge that the free hosts' liability is limited to taking down sites when notified of their existence, but adds, "You'd be surprised how many we have to threaten with lawsuits before they act. We've been waiting to see if one of these guys is going to wake up before I open the floodgates. We've tried to talk to them, we made attempts to get in touch with them; we've sent e-mails asking if they want to work with us? But they think they're impervious."

He also acknowledges that there is a Catch 22 to the situation. "Webmasters aren't going to do anything until the content producers wake up, because it's content driven, but the webmasters have to drive the content. You'd think that this Mike Jones thing would wake them up. They (law enforcement) are going to go looking for the people he has sold content to and see if they have the records, and put them out of business that way, because these guys are hot to trot."

The Future

BayTSP technology may just be slightly ahead of its time in regard to people being serious about protecting their online content, and may actually end up being more accepted in the mainstream world. Of course no one needs to be 2257 compliant in mainstream. That's the irony and the difficulty for Mark Ishikawa. The very people who need it are not utilizing it. He told us that he was about to institute a new cheaper pricing structure, but it wasn't available by deadline.

By the time this issue comes out, BayTSP may in fact have turned its back on the adult Internet, but this writer hopes not. Truthfully, he can't understand why any content producer wouldn't want to pay to use cutting-edge technology to protect his creations online. As far as 2257 goes, Ishikawa perhaps put it best. "In the current scenario, people just say that the content producer has the records. But a big concern that a webmaster should have is if that content producer disappears. And what if they're overseas? Anyone can go out there and get kiddie porn, and print out a little receipt that says that the custodian of records is this guy over in Russia. ?I've got kiddie porn and the license to show it?' Come on. That's why the CFR's were written the way they were. It's burdensome, yes, but it's the only way to do it."

) was enthusiastically mixed in his endorsement of BayTSP. "We're not a content producer, but we have an ethical obligation to content producers to protect against infringing users of their content. I think the concept for BayTSP is absolutely tremendous. We want to be a BayTSP customer probably more than anybody else. We find it incredibly intriguing using technology to manage not only copyright infringement but also illegal content. The reason is that we are not using it right now is that we feel that BayTSP needs to work with content providers to secure spidering and 2257 compliance contracts so their database is filled, and once their database is filled we can crosscheck our sites with their database. Right now we feel that their database, because the company is so young, is not comprehensive enough to bring full usefulness for the price.

www.media21.net). "The question becomes, is a webmaster a secondary producer? And everything that I've been able to find out so far is, no. Because if the primary producer is the photographer, and then it goes to someone else, then that someone else would be the secondary producer. In some instances, before it gets to the webmaster, it's still going to someone in between, the content provider that I go to, a middleman. So, from anything I've been able to read or glean in any other way, I don't consider the webmaster a secondary producer." But when pressed he did add that, even though most of his content is live streaming video, which is exempted from 2257 compliance, he would soon be adding some photographs. "I'm going to have to be compliant. It depends on what's the cost. If I'm a content producer, I'll keep the records on site, and I won't buy content unless I can get it [the records.] I will be compliant. It's just which way I go about it."

www.videosecrets.com), wouldn't comment on BayTSP directly, but did say that "We feel that 2257 is an extremely important law that must be followed without exception. Every image or piece of content that we have produced, purchased or leased must be 2257 compliant and we must have a custodian of record's address and information on file prior to its use. Once we have this, we will then begin implementing the content into the website while simultaneously updating the record-keeping information to reflect 2257 compliance off the new content online as well." He added that their online 2257 statement was available at the bottom of the home page of the above URL by clicking on "RECORD KEEPING INFORMATION."

www.sweetentertainment.com) of Vancouver, British Columbia. We spoke with Tom Sweet about why they chose BayTSP. "Primarily for its license tracking software and its ability to spider the Web and locate our images. We've always been 2257 compliant as far as keeping the records, and with BayTSP it's just an added bonus for us. In fact, we've just started implementing the 2257 on some of our older products. It takes quite a significant time to get it all set up. Basically, we scan the IDs and the releases. They're all digitized, and they're [names and addresses] are blackened for the ones that are shown to the public, and then there's the version for law enforcement. Either they can scan it or we can. I chose that we would do it, because we don't like the releases to leave the building. Then BayTSP handles the actual input of all the data."

adult content producers were using the BayTSP products as of 11/10/00.

$50.00 is the monthly cost for one website for a webmaster to comply with 2257; $10.00a month for each additional site.

$1.25is the one-time cost per image for a content producer to ensure 2257 compliance for images produced after 7/3/00.

$.15is the one-time cost per image for a content producer to ensure 2257 compliance for images produced prior to 7/3/00.

$.02 to $.11is the monthly cost to "protect" a content producer's image.

99.8\\%is the compliance rate (content removed from websites or newsgroups) after infringement notification is sent (as of 10/30/00).

14,467were the number of copyright infringements identified by BayTSP spiders as of 10/30/00. (While we were there a red LED display counted the number of new infringements in real time. Every time I looked it had increased.).

1 second to compare an image against 250,000"fingerprints" for possible infringement.

5 millionimages a day for comparison.

AVN Online, was daydreaming in the back seat as we headed north from Los Angeles for an hour or so flight to San Jose to spend the day checking out BayTSP's operations. After a safe but white-knuckled (for me) landing, we headed to their large suite of offices, which are located in a nondescript building somewhere in the Silicon Sprawl. Like most Internet companies, there isn't much to see except for banks of servers, private offices, a conference room and a kitchen. But, in addition to getting to pick their brains in person, we also got to see a valuable demonstration of the 2257 software and sit through a few minutes of spidering for copyright infringements.

www.baytsp.com) is a San Jose, California-based company that has developed proprietary software that enables webmasters, adult and mainstream, to protect their copyrights online by using spiders that search the Internet for cases of infringement. Among other products, they also offer "the only electronic 2257 [federal record-keeping] compliance software designed specifically with the needs of Internet-based adult content providers and law enforcement agencies in mind." It should be more than obvious why a content producer would want to protect their material from being stolen and then used for profit on the Internet. But why should content producers or adult webmasters care about being 2257 compliant, especially since no one has thus far been prosecuted under it?






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Tom Hymes

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