TPoP: No, it's not fair use

An in-depth examination of the legal question of whether The Price of Pleasure's use of content from pornography is "fair use," or whether it violates 2257, from Harper Jean at Polymorphous Perversity.

The core of the law, 18 USC 2257, is this:

Whoever produces any ...film [or other media] which contains one or more visual depictions ...of actual sexually explicit conduct...shall create and maintain individually identifiable records pertaining to every performer portrayed in such a visual depiction.

Seems pretty straightforward. And the definition of "produce" in the law is very broad indeed. It includes:

digitizing an image, of a visual depiction of sexually explicit conduct; or, assembling, manufacturing, publishing, duplicating, reproducing, or reissuing a book, magazine, periodical, film, videotape, digital image, or picture, or other matter intended for commercial distribution, that contains a visual depiction of sexually explicit conduct...

This clearly covers "secondary producers" who repackage content originally created by others - including documentary filmmakers. I therefore think it's reasonably clear that 2257's recordkeeping duties extend to the makers of a film like The Price of Pleasure.

"Fair use" does not apply to 2257. I have encountered three arguments to the effect that 2257 does not extend to this film. The first is that the film constitutes a "fair use" of the explicit images that is permitted by law. This is something of a non sequitir, since the "fair use" defense applies only to the law of intellectual property - as reflected by the fact that the film begins with a "Fair Use Notice" that references the US Copyright Act, and not 2257. It is fine so far as it goes - the makers of The Price of Pleasure should be safe from an infringement suit by the pornographers whose work they excerpt - but is irrelevant to 2257. Nor is there reason to expect that courts would impose a "fair use" exception to 2257 based on the First Amendment, since the fair use doctrine was developed to balance the competing interests that arise in IP disputes; the court has never referred to it in discussing the regulation of child pornography, which is the basis for 2257.

Is there an "obscured genitals" exception? A second argument is that 2257 does not apply because the documentary digitally obscures the naughty bits of performers in the various porn films it excerpts, thus rendering it no longer "sexually explicit." This argument has a superficial appeal, but doesn't seem to comport with the relevant statutory definition, which is:

“sexually explicit conduct” means actual or simulated—
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(ii) bestiality;
(iii) masturbation;
(iv) sadistic or masochistic abuse; or
(v) lascivious exhibition of the genitals or pubic area of any person;

18 USC 2256(2)(a). Notably, the law contains another, different definition of sexually explicit conduct that applies where minors are involved - and that definition specifically employs the word graphic, defined to mean that "a viewer can observe any part of the genitals or pubic area of any depicted person ...during any part of the time that the sexually explicit conduct is being depicted." This is a broad definition of graphic, but presumably would exclude consistent obscuring of the genitals. It is significant, therefore, that the term graphic is not employed in the definition that pertains to material not involving minors. I think it is relatively plain, therefore, that the term sexually explicit conduct (as applied to material involving only adults) includes depictions that are partially blurred. Sexual intercourse or masturbation is still sexual intercourse or masturbation.

....Is there an educational exception? A final argument is that The Price of Pleasure is exempt because it is an educational film. This is based on the language of federal regulations, which state:

Sell, distribute, redistribute, and re-release refer to commercial distribution ...but does not refer to noncommercial or educational distribution of such matter, including transfers conducted by bona fide lending libraries, museums, schools, or educational organizations.

28 CFR Part 75(d).

At first glance, this might seem to create a broad exception for educational materials. But it doesn't, for a couple of reasons. Let's assume that the distributor of this film is in fact a "bona fide...educational organization" - it is in fact distributed by the Media Education Foundation, apparently an educational non-profit. And let's also assume that educational distribution here can include charging a fee, i.e., selling, while still falling into the exception - the "noncommercial or" would seem to suggest as much. That means the film is not covered by 2257(f)(4), which criminalizes the sale or distribution of covered material without a 2257 compliance notice (stating where age verification records are stored, etc.) And, let's assume that the regulation itself is reasonable and valid, even though a federal appeals court has stated that under the statute itself, "The plain text and definitions of the terms used admit of no commercial limitation on who will be considered producers." (This from a panel of the Sixth Circuit, which went on to hold 2257 unconstitutional in at least some sitautions. The decision has been vacated for rehearing by the full Sixth Circuit. For more on the case, see this article.)

So far, so good. But there is no textual basis for this regulatory exception to apply to 2257(f)(1) through (3), which make it a crime to produce covered material that later gets sold without including compliance notices and actually creating and maintaining accurate records. In other words, the exception seems to mean that the distributor, MEF, is in the clear - but it doesn't seem to be of any help to the filmmakers, who would still violate the law by failing to create and maintain records, and to include compliance notices.

Personally, I have problems with some of the broad wording of 2257 myself (as does Harper Jean herself.) And I do sometimes think breaking bad laws is justified.

However, I'm not at all convinced this is one of them. Even if it is, though, assuming for a second that TPoP is correct and exposing the horrors of a woman-destroying industry, and much needed:

Wouldn't the noble thing to do be to proudly admit to your civil disobedience and assert that it is important enough to do anyway, rather than to slimily insist that what you're doing counts as fair use? Or at the very least to argue vehemently that it should count as fair use (I'm not sure I disagree), rather than sloppily asserting that it already does?