Image by Samantha Wolov.
Two developments of note this week:
* As you may have read on Fleshbot yesterday, Max Hardcore (Paul Little) has been indicted on federal obscenity counts, as revealed in a freshly unsealed (Florida-based) document on Smoking Gun. Now, this doesn’t surprise me at all considering the stomach-churningly “extreme” nature of the porn Little makes, and it’s the kind of stuff I’d never review, or even link to, from here. That said, there are sex acts listed in the DoJ’s release that are, well, just sex acts that a lot of people enjoy in their course of healthy and adventurous sexual expression — like “anal penetration, urination, insertion of an entire hand into a vagina or anus”. Also, what’s concerning about this news (besides my revulsion that Little might suck up valuable free-speech resources for his *very* lame porn), and is getting no notice at all — is that several of the counts are for distributing files via his website.
* Did you know that today is the day new 2257 regulations are supposedly up for comment? Or that an injunction was won regarding secondary producers? I thought not. Hardly anyone does. In an April 30 newsletter, the Free Speech Coalition told subscribers that On Wednesday, April 25th in Colorado, Federal District Court Judge Walker Miller held a status conference with the Free Speech Coalition and Government attorneys. This applied to 2257 and so-called “secondary producers” of adult content. The FSC’s litigation team stated,
We have no reason to anticipate imminent inspections of secondary producers. The reasoning underlying Judge Miller’s preliminary injunction remains valid; that is, prior to July 27, 2006, there was no statutory authority for record-keeping by secondary producers. We are awaiting regulations which will announce the Department of Justice’s position on what secondary producers’ responsibilities are under the July 27, 2006 amendments.
The FSC basically got an injunction against 2257 for so-called secondary producers; the DoJ’s new regulations are supposed to be released today and will be open for a 60-day comment period. But with the comment period and process timeframe, the FSC estimates that any new 2257 regulations won’t go into effect until 2008.
If you’re nerdy about this stuff, I’ve pasted a couple of the FSC’s 2257 update FAQ’s (link to .doc) after the jump. As soon as I know more about the DoJ’s “new and improved” regulations, and where to comment, I’ll let you know.
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1. As a secondary producer, what records should I have in place to be in compliance as a result of this decision and from what point in time do I need them?
Secondary producers were required by Congress to have records (photocopy of passport, DMV-issued ID, military ID or “Green Card” as well as personal information form) for materials acquired after July 27, 2006. The regulations detailing how compliance is to occur were supposed to be issued in January of 2007. They are now scheduled for release in June.
Nothing legally has changed in regards to the basis by which FSC got its injunction; that is, Congress had not authorized any record keeping by secondary producers prior to July 27, 2006. Therefore secondary producers need not acquire or maintain any records for materials acquired prior to July 27, 2006, at the earliest. It is more realistic to say that records will not be required until the effective date of the new regulations.
If the Government is so stupid as to try to enforce record keeping by secondary producers for materials acquired before Congress authorized such record keeping, FSC will seek and expects to get an immediate order halting such action.2. When do you anticipate is the soonest the new regulations concerning 2257 will be released?
The Government recently stated that the proposed regulations will be released in June of 2007.3. What happens once the new regulations are released?
With a 60 day public comment period, assuming that the proposed regulations are released June 1, 2007, the Government has unlimited time to reflect on the public comments before issuing the final regulations. Assuming a conservative 60-day period after public comments to issue the final regulations (60 days would be lightning speed), the 2257A regulations, by statute, would go into effect 90 days thereafter. It is reasonable to assume that the same will apply to the 2257 regulations. Therefore the soonest they could go into effect would be seven months from June 1, 2007. So it looks like 2008 is when we shall see final regulations become effective.4. Is FSC going to file for another injunction? What are FSC’s next steps?
FSC will seek a court order preventing the new regulations from going into effect, assuming that the government does not completely relent from the burdensome compliance regime it has heretofore insisted upon. Additionally, because of the newly enacted “Hollywood” exemptions to 2257 and 2257A, there is a much stronger argument for declaring the entire 2257/2257A record keeping and labeling scheme unconstitutional. This is a realistic hope.
