Wednesday, December 24, 2008

It's Official: TPoP and SPC Slide Show Violate 2257

So, by various subtrefuges and transparent rationalizations the creators of these "mocumentaries" have attempted to worm out from under the record keeping requirements to which all producers of sexually explicit materials are subject under federal statuate 18 U.S.C. 2257. They've babbled on about fair use and offered the extremely peculiar defense that the porn images stolen for their horror shows is presumed to be compliant because porn producers have financial incentives to obey the law and therefore whatever content is stolen from them and recycled to slander them is also compliant.

Well, the latest "clarification" of 2257, whle murky as ever on many points, is pretty clear when it comes to the so-called documentary use of sexually explicit images, and any exemptions from 2257 claimed as fair use or under whatever other guise.

Here's what the Department of Justice has to say on this particular subject, word for word:

"Several commenters ask the Department to exclude news and documentary programming from the definition of 'producer'," the DOJ reports. "The comments claim that producers of that programming use footage provided by others under the fair use doctrine. The comments posit that if a producer includes news and documentary producers, then such producers either will lose the ability to obtain footage depicting any adult sexual conduct, or will be forced to make payments to the original producer notwithstanding the fair use doctrine. The Department declines to adopt this comment. The First Amendment does not permit even a bona fide reporter to trade in child pornography in order to create a work of journalism."

Are you paying attention Professor Sun, Mr. Wosnitzer, Dr. Jensen and Dr. Dines? You better be, because that's you all the feds are talking about, and they're not buying your lame excuses for ducking 2257 compliance any more than I do. You better get those records, cut that footage, pull these products from distribution or be ready for a knock on the door at some point during regular business hours.

It's a rare day indeed when I agree with the D.O.J. but in this matter we're very much on the same page, and when the F.S.C.'s lawsuit is finally negotiated to a settlement, as I believe it will be in the first few months of the new administration, I'm quite sure we'll still be in accord on this particular topic.


  1. It's, like, the best Festivus present ever.

  2. As a caveat to that, though, Ernest, the documentators could say that that particular section of the "rule" applies only to specific "child pornography" where specific images of "children" under 18 are used. TPoP can still claim that their images use strictly adult women whom they claim to be "abused" in the name of making pornography, and that the "educational" value of exposing porn for its detrimental effects, as well as the fact that the material is not used for "prurient" purposes (i.e., masturbation) but strictly for "educational" purposes, is therefore not actionable under 2257.

    I do find it amusing that the DoJ would say that a "bona fide" reporter cannot "trade in child porn" or use the First Amendment to get out of trouble with them...but law enforcement officials and moral groups using actual child porn to lure and entrap innocent people sure are allowed to avoid indictment through plea bargins and deals to snitch on others. Does that mean that if an official from, say, Morality in Media secretly puts out an obvious piece of kiddie porn to entrap an innocent person, then "outs" that person to the authorities, would that official as liable to the law as the person being targeted?? Or, would he be pardoned for his "good deed" of keeping "pedophiles" off the street?

    Personally, I'm not so sure that the DoJ will be knocking on Gail Dines's or the TPoP producers' doors any time soon...that's reserved exclusively for the adult producers they really want to target and destroy.

    One more reason why this rule has got to go. Not just be negotiated...completely gone. And replaced with a better rule that targets child porn at it's root source: the actual PRODUCERS and PERPETRATORS of abuse of children.


  3. Anthony,

    No basic disagreement on what the rule should be, and there are plenty of laws that deal with genuine child pornography as harshly as the crime deserves.

    However, 2257 in some form is almost certainly here to stay. it does nothing whatsoever to prevent child sexual abuse because obviously those willing to commit the far more serious felonies entailed in the creation of such material are hardly likely to be deterred by the prospect of a few added counts of failure to maintain proper documentation.

    As you say, it's clearly intended to harrass legitimate producers of lawful pornography who wouldn't go near kiddie porn. Unfortunately, it's politically unfeasible for any official to admit to such a thing, much less act to eliminate it. No federal judge or member of Congress is going to take up the banner of defending porn producers' rights to make sexually explicit material by and for consenting adults at the risk of being tagged as an enabler of kiddie porn. Nor is anyone outside our world much troubled by the tremendous and potentially dangerous invasion of performers' privacy entailed in requiring the maintenance and repeated circulation of sensitive personal information about their off-stage identities. Like the presumption of innocence with which 2257 is in direct conflict, the principles matter less to those who wield the power than the politics, and I don't see that changing anytime soon.

    But there is some cold comfort in the leveling of the playing field the latest batch of legalistic jive imposes to some degree. I wouldn't be so sure that anti-porn crusaders will get a free pass on this deal. The government's lawyers have really gone to great lengths to reject all challenges to the basic rule book based on special circumstances of this sort or that. If in the end some enforcement is ultimately attempted, it can't be entirely arbitrary and selective. The D.O.J. itself has slammed the door on many potential evasions in the most recent version.

    You wouldn't, for instance, necesarily make a vast inductive leap as the government did when challenged on the definition of sadomasochistic abuse by a commenter from a measured consideration of consensual kink as opening the floodgates to child exploitation justified by the subjective judgment of producers regarding what constitutes exploitation.

    Here's how far they went, and what I had to say about it:

    "One comment requests that the Department define 'sadistic or masochistic abuse' because some people believe that safe and consensual bondage is not abuse, and requests that the Department distinguish between actual and simulated sadistic or masochistic abuse," the DOJ writes in the comments section. "The Department declines to adopt this comment. That term is not a subject of this rulemaking. Moreover, actual sexually explicit conduct depends on the content of what is being displayed, not on whether the content is subjectively considered to be abusive. If belief as to abuse were to control, a producer who determined that nothing was abusive would be able to avoid compliance with the regulations in their entirety, creating massive opportunity for child exploitation."
    In other words, the Department's position seems to be that the term "abuse" as used in 18 U.S.C. §2256(2)(b)(ii)(III) is meaningless; that if any content depicts what might be viewed as "sadistic" or "masochistic" behavior, it triggers the 2257 recordkeeping and labeling requirements.
    Producer/director and BDSM aficionado Ernest Greene agreed.
    "What they're saying is, 'We decide what's abuse and what isn't,'" Greene assessed, "and the fact that some people might not consider it abuse - I guess the leap of logic here is, 'If we allow them [producers] to define anything one way or another and alter the statute based on the object of the statute's definition of a thing, the first thing they're going to do is run out and put kids in it and say that that doesn't constitute a violation,' but I fail to see what one thing has to do with the other, because child pornography remains illegal, whatever form it takes."
    "This particular argument goes all the way back to 1956 and Irving Klaw," he continued, "when the Kefauver Committee struggled mightily, with the help of the typical kind of shrinks that come in to do this kind of thing, to determine what might be pornographic even though nobody had their clothes off or was having any sex. They were engaging in bondage and other kinds of activities of that sort that might have a sexual connotation to them but might not. In any case, in that context, they wished to classify it as pornographic, and of course, by writing postal regulations without bothering to go to Congress, which this is somewhat of a throwback to, they did do exactly that, and that's what led to Irving Klaw ultimately pleading out to the postal obscenity charges and agreeing to destroy all his stuff and go out of business. So the argument they seem to be making here is, we're the ones who decide what constitutes abuse, and the fact that a producer decides or the people involved decide it's not abuse doesn't matter."

    In other words, intent does not abrogate even the most minute requirement of the statute. And the contemptuous violations of the those requirements by anti-porn crusaders are anything but minute.

    TPoP's producers, and their mouthpiece Dr. Jensen, try to bail themselves on the basis that they deeply and profoundly believe that no minors appear in any of the material they've pirated, but they have no means of proving that's the case, and the statute is all about proof, not about whether children were actually exploited or not. It's a no-excuses deal regardless of any claims, however sincere, on the part of the producer regarding motives or suppositions. Unlike the Miller standard, 2257 does not concern itself with issues of prurient interest or higher purpose. It's strictly about the paperwork.

    And contrary to the specious claims of TPoP's crew and the folks at SPC, they are most definitely producers.

    Here's what The Man says about that, according to ace First Amendment lawyer Paul Cambria:

    "The new regulation exempts "distribution" from the category of "producer," which is not much of a change from the prior version of the regulation. However, 28 C.F.R. 75.1(c)(6) also provides that, "Unless the activity or activities are described in section 2257(h)(2)(a) [the definition of "produces"], the dissemination of a depiction without having created it or altered its content" is not a producer activity. This exemption is very limited, though. First, activities such as digitizing an image or inserting an image on a computer site or service or managing the sexually explicit content of a computer site or service are not exempt. Second, certain activities such as pixilation would be considered an alteration of content sufficient to eliminate the exemption for distribution."

    In other words, the very slice-and-dice editing techniques used in both TPoP and the SPC show make them essentially new products containing sexually explicit material, and therefore their creators porn producers by the definitions specified under the law. They're not even secondary producers. They're first in line as a result of having "altered" (even by pixelation intended to prevent "lascivious display of genitalia") the material they pirated, thus creating entirely original productions requring full compliance with the every single provsion of the regs.

    Do I think anyone should go to jail over such nonsense? Of course not. Do I think anti-porn crusaders who abuse the law are less likely to be prosecuted than actual pornographers? Absolutely. But are they, in fact, in violation of the law and thus potentially subject to its penalities?

    Unlike the individuals in question, I would never take the gamble that they aren't. Arrogantly and blatantly flouting federal statutes is a dangerous game, whoever plays it and whatever the object.

    Should any professional pornographer being prosecuted for a technical violation of 2257 care to cite anti-porn propagandists' apparent immunity as examples of selective prosecution, such concerns may prove to be far from abstract.

  4. Although it is a Canadian documentary produced by the National Film Board of Canada in 1980-1982, the critically acclaimed documentary Not a Love Story, has a scene from a kiddie porn movie. Strange huh?