It's been a long time....

Obviously, I have been away...I regret that in some ways, but I have, in many ways, had a great deal of other shit to handle...

But I see how things are going in the world, and with that, something I put up over at the GER blog which I think is oh so fitting....-Ren


Ozymandias: It doesn’t take a genius to see the world has problems.

The Comedian: No, but it takes a room full of morons to think they’re small enough for you to handle.

Fitting, I think, in oh so many ways.

It’s late, or rather early, for those of you who sleep like normal human beings. For me, it is late. And as of late, as I have been sitting back, watching, reading, seeing how things are progressing in the world part of me wants to stand up and scream “No, can’t you idiots see what you’re doing?” The other part, well, the other part of me wants to sit back, light a cigarette, smile that smug, grim smile of mine and say “Well, look, you got what you wanted, your biggest wishes and dreams came true! Now there is blood running in the gutters and you are standing knee deep in it so how does it feel to try that on for size? How does it feel to know you had a hand in that?”

At this point, you might be asking what my grim, insomnia rattled self is talking about. Well, I’ll give you a hint: what I always talk about. The Sex Industry and people who think they know what is best. They do that a lot, you know…people. They, oh, envision utopias and get into causes and picture a nice pretty clean world and think they can actually pull that shit off? Clue here, people. It ain’t happenin’. Not in this lifetime or any other.

But yeah, some people are on the verge of victory, you know, getting the things they’ve always wanted? Reaching their big time goals? Anti-sex industry people should be patting themselves on the back right now. I suspect they are, actually. Countries all over the world are looking into the Nordic Plans for prostitution. Even here in the good old US of A states where prostitution was not illegal (all two of them) are moving towards laws more like those in the rest of the country. Porn? The porn industry is in serious trouble. Obscenity laws, the AIM/Cal-OSHA wars, all kinds of shit. Look, anti-industry people? You are getting just what you wanted. A crack down on selling/buying sex. Porn companies folding or in serious financial straits. You’re winning!

But, she says, lighting that cigarette and smiling that grim smile, at what price? The people you worry about the most? Claim to care about the most? The poor women, the trafficked women, the drug addicted, un-educated women? The young women, the children? Well, Ozymandias, whom do you think all of this is going to hurt the worst? Need I remind anyone that we are in a world wide mass recession? Jobs are scarce. People who were formerly middle class are now fighting to keep their jobs, their homes, and their lights on? The exact sort of conditions- poverty and desperation- that lead or force the unwilling into the sex industry in the first place? The types of things that prompt a family to sell a child into sexual slavery? The types of things that make it easy for traffickers to trick women into forced prostitution after promising them better lives in far away lands? And it is not as if our world governments have swept in to pick up the slack here, dear readers. There are no government funded, state supported, fully functional programs for former forced sexual laborers. No medical care. No educational or job training. No day-care. No living quarters. No roof over the head, three squares a day promise of a better life. The closest thing we have is…prison. So where are these most unfortunate of people to go? Just back to what they were doing, in more dangerous conditions. If you think in your pretty new world there will not be forced, coerced sexual labor then you are a fool. Ruthless people bent on profit do not let things like nice sounding laws get in the way of their businesses. The willing and the unwilling will still be fucking for money no matter what the law says. It may not be on your corners anymore, but it will still be happening, and the worst of it will be happening to the most vulnerable people of all. Your vaunted models will not end supply or demand, it will just make things uglier and worse. And if you think it will actually cut down on trafficking? Ha. I will call you either a stupid or naïve fool. And I will be right. Selling sex is illegal here in most of the USA, but it still happens every day, and in every way, 24/7-365…even on Christmas.

As for porn, do you honestly think hamstringing the legal porn industry in California will stop porn from being made? Fact here, aside from in Ca, it is illegal to make porn anywhere else in the US. Guess what? It still gets made. Tons of it. Some of it is made with Ca standards in place: legal age, testing, contracts, release forms, payment, so on, so forth. Some of it is most certainly not. And why yes, so long as there is a demand for porn (which there has been, for a long, long time) it will get made. Would you prefer the porn that is made to be made by people who abide by the Ca standard, or not? Because sure enough, so long as someone is willing to spend money to watch people fuck, someone will profit from it. It will get made, and lawlessness and disorder in porn is not a good idea at all. Proof of age, testing, contracts, release forms, payment, or…. any asshole with a drunk, drugged out person and an I-Phone? You pick. Choice two is what you are actually asking for by calling for the proverbial head of the Ca industry on a pike. You think women in porn- you know, those helpless hapless ones- are abused now? Just you wait. Only a great many of them won’t be in porn anymore then. They will find other jobs, better or worse, and no one will have any idea if the people in porn are there by choice or not…because it will be illegally made and considering that, no reason for proof of age or consent. Yet it will still be watched. There will still be a demand, and a supply to fill it.

You think these laws, these victories, will put a single dent in trafficking, or sexual labor brought on by poverty, unemployment, lack of education, or force? These huge, global problems?

Well, to you and the rest of the morons in the room…those are things you cannot fix.

Prohibitionism marches on

More bad news from the legal front – the long-running Extreme Associates obscenity case is drawing to a close, with EA owners Robert and Janet Zicari (aka Rob Black and Lizzy Borden) copping guilty pleas. Story here, here, and here. Reason magazine provides further background here.

Black and Borden face up to five years in prison for the "crime" of producing extreme porn that included violent imagery. (Though at least they're not facing a potential 50 years each, as they were under their original counts.) And unlike the earlier Max Hardcore conviction, this is entirely about the content of their videos – to the best of my knowledge, in this case there are no rumors of non-consensual incidents on the production end which some people offered up as a round-about justification for Hardcore's obscenity prosecution.

Whether or not this round of obscenity prosecutions is just a bad hangover from the Bush years remains to be seen. As the Reason article points out, Mary Beth Buchanan, the right-wing moral crusader who's leading the EA prosecution, is asking to keep her job under the current administration. And the dual choices of Eric Holder and David Ogden for the number 1 and number 2 spots in the Justice Department show no clear indication of what federal obscenity policy will look like for the next 4-8 years, though hopefully the fact that the nation is facing much bigger issues will reaveal moral crusades like this for the waste of resources that they are.

In other news, Iceland is poised to become the first country in the world to impose a blanket ban on the entire sex industry. Pornography is already completely illegal there (at least in theory), and the new Left government there is about to put in place Swedish-style laws against buying sex, and goes one further by also banning strip clubs. Thus, in one country at least, achieving the anti-sex industry trifecta that prohibitionists have been shooting for. All, as usual, justified by rhetoric claiming that all sex work drives human trafficking. Further background here. It is interesting to note that in the story I just linked to, Iceland is considered a desirable enough place to work that strippers were coming to Iceland of their own volition from places like the Netherlands and Puerto Rico. However, the fine upstanding social democrats now in charge of the country have decided that this is all exploitation without bothering to ask anybody who actually works in that industry whether they are being exploited.

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?