2257, Indexing, and Identification of URL Locations

The DOJ has created a huge dilemma for some webmasters.

The Department of Justice's new 2257 regulations contained profound changes, not only from the old ones, but from the proposed revisions of about a year earlier. Plainly recognizing the vulnerability of 2257, some of the changes obviously constitute litigation strategy from the DOJ's end. Thus, for example, the vulnerability created by the requirement that the records be at the producer's office — perhaps an apartment, thus exposing the world to the producer's home address, or a generally unoccupied office, resulting in the impediment of keeping it open 20 hours per week, an enormous burden — is gone, supposedly solved by the third-party record keeping requirements. It did not do so for the webmaster.

For example, if a website is devoted only to one producer's content, as some are, that producer now can be the third-party record keeper. All that needs to be done is for the webmaster to contract with the producer to augment his records with the required listing of URLs for all images created after June 23, 2005. Likely, where a producer and a webmaster have an exclusive agreement, the producer will be willing to accept that as long as the webmaster foots the bill for supplementing the records. And, insofar as the risk is concerned, the relationship is probably good enough that the webmaster will feel confident with the producer. However, since he/she may not, webmasters in this circumstance obviously will want to keep close tabs on the producer and his 2257 compliance.

Third-party recordkeeping, at least according to the apparent position of the DOJ, may not help webmasters who have content from multiple producers. The reason largely is the indexing requirement.

Assume that a webmaster has content from eight producers that are not interrelated. Now, one would think — although the DOJ apparently does not — that this could be solved by simply having eight different 2257 hyperlinks, applying the appropriate one to each image. Then, clicking the hyperlink leads to the disclosure of the location of where the records are: the primary producer. There are three problems with that. First, each producer must agree — "contract" — to be the record keeper, although that might be manageable. Second, the producer must have the webmaster's URLs added to its records, which also might be manageable, although eight times more complicated than the exclusive example. Third, secondary producers are burdened with the same indexing requirements as primary producers. That means that there must be an index of all of the performers, titles, legal names, stage names, maiden names — you get the idea.

Nobody can make such an index without obtaining (and indexing) one of two things: the records themselves or the computerized indexes from all eight producers. And, in all probability, the eight producers will not have their indexes in the same database format. Either some sophisticated computer programming or a whole bunch of manual inputting of data will be required.

There is one additional problem in the eight-producer scenario that isn't written into the regulations or 2257. You will now need to trust and monitor eight 2257 systems, not one, with your freedom — literally — at stake. That is burdensome, but perhaps manageable in the eight-producer scenario.

Now let's ramp it up to some of the VOD and other sites that have content from sometimes hundreds of producers. Are you going to trust all of those producers to keep you out of the hoosegow?

But what about indexing? A quick look at some of these sites reveals that stuff is indexed all over the place. By studio? By performer? But the indexing requirements include stage names that might not have been used in any of the movies on the site, real names, maiden names, nicknames, etc. And the sites that do this indexing do so for the convenience of the viewer. So if there is a mistake, the worst that can happen is a disgruntled viewer because a favorite starlet was omitted from the index. That is not a big deal. But screwing up 2257 records obviously can have profoundly more dire consequences than that!

Clyde DeWitt is a Los Angeles and Las Vegas attorney, whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at ClydeDeWitt@Earthlink.net. Readers are considered a valuable source of court decisions, legal gossip, and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases, and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

This article originally appeared in the June 2009 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.