How Does An Ageless Sex Goddess Celebrate Her 50th Birthday??

If you happen to be Nina Hartley, you....

1) reflect on your impact on the world at large. (Which would be, on the subject of sex and pleasure and women's sexuality, and bringing progressive values into the hardcore erotic medium, pretty much HUGE.

2) You have lots and lots of sex. (Ahhh....duh.)

3) You debut at the Huffington Post with a killer essay depicting a fictional brunch with another legend and world changer who has had her own share of ups and downs....and has managed to persevere through it all with strength.

What's that you say....Barbie's a doll, and she can't speak??? Well. let's pretend that she can, and that she and Nina decide to have a gettogether where they shoot the breeze about their lives.

Fortunately, Nina can speak, and type, and write. Based on the results, pretty damn well, too.

Show her your love by going there and reading..and then drop her some birthday wishes and some thanks for...well, just being, talking, and doing the sexy for so long.

Nina Hartley: My Brunch With Barbie (from The Huffington Post)

More Hot Air from the Windy City

So last month I posted about the meeting between Robert Jensen and Tom Dart, the Chicago-area sheriff and anti-prostitution crusader. This grandstanding prick is now making headlines suing Craigslist in federal court in an attempt to force them to drop its "erotic services" section entirely. Story here and here. Bound, Not Gagged posts a response from SWOP Chicago here.

His argument is that advertising prostitution online is promoting a "public nuisance" and should be banned on that basis. Evidently driving more prostitution back out onto the streets (which is what is likely to happen if internet prostitution is curbed) doesn't come under this guy's idea of "nuisance".

I also notice from one of the videos of Dart's press conference that the anti-prostitution group CAASE was part of it. And CAASE, in turn, is a group that has worked quite closely with Melissa Farley in the last few years and who's "Alliances" page is pretty much a laundry list of the usual suspects from the "progressive" anti-porn and anti-prostitution milieu.

I point to the latter, because I'm so sick of hearing how anti-porn radical feminists are a marginalized group that doesn't exercise real political power. Once again, very real links to powerful players in politics and law enforcement who are doing their bidding is revealed here. The antis, both Right and "Left", have real power in the real world (power that in the opinion of those of us here at least, does real harm to real people). Its about fucking time they owned up to that power.

On Proof

Short and sweet, here.

Recently I was talking online in a thread that turned to porn and trotted out the old "Porn causes addiction, and people seek harder porn as they might seek harder drugs" line. I mentioned that this was never the case with me. I don't look at porn nearly as much as I used to, for one, and for another, I'm not hopelessly obsessed with gonzo (which is where I'd definitely be these days if the theory were true.) I've also observed similar things in my lovers: we like certain things and go looking for those things, rather than "graduating" from our own preferences to those of our porny overlords.

The response was pithy snark:

Dude, over time everyone’s fantasies are dictated by porn. They may seek their own fantasies out at first, but porn use tends to escalate in nearly everyone.

Bleak indeed! I guess I'll be jilling off to Max Hardcore when I'm sixty, then. Maybe the process is just slow.

Of course, I asked for the proof, and got an answer: Simply consult the almighty Google!

There have been so many studies about people’s porn use “escalating” that I’m sure you could Google a few thousand. Porn is more like drugs or booze than books; it’s a taboo, it’s tied to pleasure, etc. That means escalation is very, very likely. And I can tell you that every dude I know who is willing to discuss his porn use will admit to escalation.

You can't make this shit up.

That's the thing that gets me, really. These people feel totally comfortable stating something as fact, but when pressed can't even remember the name of any study that even supposedly proves them right.

Where I come from that's called believing old wives' tales, and about as silly as thinking that waving dead chickens over warts will cure them, but apparently it's been proven to them...

Nina Hartley's Defense Against the Blog War

There have been a lot of responses to Nine Deuce's hate campaign against BDSM, porn, and anybody who has that as part of their sexuality. Renegade Evolution, Trinity, Anthony Kennerson, and a number of other have been all over smacking back her hate for a few weeks now. Natalia Antonova had a particularly spot-on response the other day over on her blog. And I think, finally, there's getting to be a general sense, even among those that were more willing to give ND the benefit of the doubt, that ND isn't just some clever girl with a few strong opinions, but a Fred Phelps-level hate addict and bigot.

Apparently Nina Hartley also had some choice words about Il Deuce, posted over at BDSM performer Claire Adams LiveJournal blog about a week ago. I think Nina's response deserves some wider airplay, so I'm reposting it here:

Nine Deuce says my husband should commit suicide. Why? Because he’s a heterosexual dominant man. As for submissives well, we should all spend our lives alone and frustrated because we’re so sick and broke, we’ll inevitably seek out abusers with whom to mate and convince ourselves we love them. Of course, she denies “telling other people how to live their sex lives,” but I defy any objective reader to check out her flavor-of-the-month “radical feminist” (or neo-con feminist as I prefer to think of it) Internet blog. The faction of twenty-something resurgent second-wavers to which she belongs has found a new pinata to bash: BDSM. And the kind of BDSM involving dominant men and submissive women is where they find the poison candy they’re looking for.

A recent series of particularly inflammatory posts over at Nine Deuce’s pop-stand reveals so much about the prejudice she and her friends preach toward the likes of us, it’s too ugly to ignore. They’re all about button pushing, and knowing that going in, you don’t have to consent to having your buttons pushed.

Each starts out with some “observations” from the author, who offers up some regurgitated Dworkin-era stuff about the “problematic” nature of any woman’s consent to engage in acts of sexual submission within the context of a patriarchal culture. This she spices up with witty observations like these: “If exploring your “dark side” entails wanking to women being tortured, it might be best to leave it unexplored. Or kill yourself.” It’s not that she wants to tell any of us what to do with our lives, of course. Then there are the trenchant summations, couched in a hip, mocking tone worthy of the locker room at a particularly catty middle-school: “The way I see it, if you think you’re punk for getting off on reenacting the kinds of abuses that real women and children in this world suffer on a daily basis (and thus mocking their suffering), you can go fuck yourself.” Oh, am I cherry-picking these comments and leaving out all the brilliant analysis that justifies them? Allow some of her comment-thread cyber-cafe revolutionary pals to bring you up to speed. “...we as women must be aware that BDSM relationships always involve manipulation from those involved. I don’t understand how a woman can lower herself like that, reducing herself to a thing, says one in response to a perfectly civil dissenting post from a self-described submissive woman. “These women harm feminism more than any pathetic gorean man.” Um, the Gor thing, so eighties, but then so is the rest of this bullshit.

Try this on for size and see if it fits you or anyone you know: “I can’t believe the levels that people will go to justify hurting other people. It is really sick and insane. This is not what feminism is fighting for- your right to “choose” which man beats you and gets off on it. Y’all may think your man “loves” you or respects you, but no decent man would hurt his partner. End of story.”

Well, maybe not quite the end of the story. The juiciest parts are reserved for dominant men: “I’d like to hear just one of these male sadists stand up and say, “Yes I like torturing women, I get off on it. I like to hurt them - it sexually excites me” because surprisingly enough despite their so-called dominance, they spend their time hiding behind submissives who have to keep repeating the mantra to anyone who will listen,“’I chose it.” Choice and consent? No such thing for women under the almighty patriarchy, which means that our right to choose to have an abortion or to deny consent to a rapist is essentially as meaningless as our right to honor our own sexual orientations. They’re not really our own, but implanted in our brains by an evil, male-dominated society, kinda like something out of a pod-people movie. “This “choice” argument was created by anti-feminists who wanted to claim that every choice a woman makes is a feminist choice which is clearly ridiculous. It’s an anti-feminist concept not a feminist concept,” we’re told. So the sex that turns us on is sick and the men who “groom” us “to think we like it,” well, “I really want to drive ice picks into this guy and the douchebag in post 1’s brains,” one of these enlightened humanists exclaims. “They’re all monsters!” according to another. And when a self-described dominant guy actually takes the bait and tries to explain himself, he gets this: “Have you ever had a relationship where you didn’t beat up your female partner?”

Of course, when a few daring sub-gals show up to defend the men they love, they’re only doing it because they’ve been brainwashed: “BDSM is not kinky. It’s A-B-U-S-E. Physical and psychological abuse. Not hip, not edgy, not fun, not kinky. ABUSE!” Gee, thanks for the heads-up on that.

And of course, all submissive women are really doing is embracing the patriarchal norm, so it’s not like they face any prejudice for it, if you don’t count the constant need for secrecy to avoid losing jobs, friends, child custody, security clearances or any of the other lovely rewards that mainstream society bestows upon women who declare their submissive kink openly, or have it leaked by someone who hates them.

It goes on and on like that, and not just in one nasty spot on the Internet. I can list off a dozen blogs where BDSM is getting a good thrashing from neo-con feminists at this very moment. Clearly, bashing kinksters has become quite the rage, literally.

Fortunately, it’s not a one-sided conversation. A couple of brave female bloggers step up to all this spewed bile with their waders on. I have no hesitation about using their screen names, because I think they should be proud of their calm and clarity of thought in the face of this onslaught of invective. The wonderful Renegade Evolution braces these bullies straight up: “Do you actually think that after telling these women "Wow, you are fucked up, sick, in denial, stuck with a monster of a partner, and pathetic!" that they are going to turn around and go "Why thank you! You are so right! Thanks for that wisdom, I am totally going to reform now and start having the kind of sex and relationships you would approve of!" I mean, that would make total sense now, wouldn't it? Perhaps in some strange, twisted, alternate reality, but no, this is the really real world.”

And pondering the foaming-at-the-mouth viciousness displayed by women toward other women for betraying our entire gender by refusing to hide in the leather closet, the coolly brilliant Trinity offers the most disturbingly spot-on explanation: “I honestly think some of these folks think it's good that we think of suicide.

I don't think anyone in here is actually saying "Go kill yourself" and meaning it.But I do think that people are saying the world would be safer and sparklier and better if we were not in it. They wouldn't hand us the guns or the pills -- most people aren't that cruel -- but as long as our despair is not directly their doing, they don't care. They don't see us as fully human.”

If we speak for ourselves, we’re just doing our master’s bidding and he’s hiding behind us. If and when male Doms accept an invitation to share their opinions, they’re harangued off the boards for being abusive, slimy assholes. This crowd.has a ready-made response for anything we say. If these people wore white sheets, we’d know to stay away from their hateful trash-talk but they stalk the world looking like you and me.

If I could do anything for my sister submissives it would be to encourage you to hold their heads high and look anyone in the eye who tries to belittle them or their choices and tell him or her politely to go fuck themselves. Every woman has a right to decide the who, where when and what of her sexual expression irrespective of the 'implications' others project onto them for it. Consent isn’t just a defense for some kind of pathology a deux. it’s not just the absence of “no.” It’s a continually renewing process of the very “examination” these nasties are always telling us we need to make of what they consider our evil sensibilities. It’s the process by which we bond with like-minded others through relationships built on trust, as opposed to mutual suspicion and hostility. Consent, and our ability to give or withhold it, is the very thing for which women have fought so long and at such cost, and we have no more cause to surrender it to the rad-fem politburo than we have to the murderous fanatics of Operation Rescue. Arguments against the centrality of consent to the way we live are lives will always run counter to the best interests of all women, kinky or not.

As women and as kinksters we struggle daily for the right to live our lives according to the dictates of our consciences and we can’t let these shame-mongers push us back. We are who we are and the reasons are none of anyone else’s damned business.

My husband is not going to kill himself because on some mean-spirited bloviator’s say-so and I’m not going to stop speaking out on behalf of other submissive women because she thinks I shouldn’t. Go have the kind of sex you and your partner desire. You have no need to defend who you are and how you love to those who deny your humanity.

Workplace Pornography: A "Virulent Cancer"!

By Radley Balko (Reprinted from Reason magazine's Hit & Run blog.)

The Washington Times unleashes a 750-word editorial on the scourge of Fleshbot culture.

Pornography is a major workplace problem in contemporary American society - and yet few private employers or government managers are willing to talk about it for fear of seeming prudish, or blindly trusting their employees, or being accused of infringing on individual liberties. With these attitudes, porn-at-work has grown like a virulent cancer, robbing employers of work time and wasted wages, causing litigation, and - most important - truly corrupting the minds of offenders while helping a squalid and perverted industry.

Republican Sen. Chuck Grassley, to his credit, has the courage to tackle the issue of pornography at work head on. His action is an opportunity to begin a national conversation on the widespread social effects of Internet porn at the office. Is this the kind of America we want to live in?

Given that we now have pretty concslusive data that Internet porn actually reduces sex crimes, I'd say yes! The concluding graphs are especially Bork-a-licious:

Some of these employees know full well that they are being monitored - and get an additional thrill for being so brazen and taking such a risk. This bespeaks the magnitude of the porn-at-work phenomenon.

With so many employees now having their own work computers, the workplace has become a center of pornographic voyeurism among some segment of American society. How to respond, beyond more porn-detecting software and greater vigilance, remains to be seen. We claim no answer. But until we discuss the challenges, America will look less and less like a shining "city upon a hill" and more like Sodom and Gomorrah - a land in which workers betray the taxpayers, cheat their employers, embarrass their colleagues, diminish their lovers, and nobody cares.

I find the "additional thrill" line implausible, or at least assumptive of facts not in evidence—unless the editorial writer is testifying.

To be fair, part of the editorial focuses on reports of government workers surfing for porn on the taxpayer dime, which is a legitimate gripe. But then, so is government employees shopping on eBay. And yes, private employers should be able to fire porn addicts without fear of an ADA suit. I've read about one highly-publicized such lawsuit, but is this really a widespread problem?

Beyond that, I fail to see the issue, here. There's plenty of filtering software employers can use to block access to porn if they wish. If an employee's porn habits are making him unproductive, fire him. I hardly think we need a "national conversation" about Felicity Fey (Did I reveal too much?).

Moreover, other than the assertions of breathless editorial writers, there's just not much support for the idea that the widespread availability of porn is "corrupting minds" or morally "cancerous." Just about every social indicator that one might anticipate being affected by the mainstreaming of porn (divorce and abortion rates, sex crimes, sex crimes against children, teen pregnancy, etc.) has for about 15 years generally been moving in a positive direction. That of course would be the very period during which pornography became widely available on the Internet.

TPoP L.A. Return by Invitation Only

Well, it turned out pretty much like I called it. Today Nina made voice contact with the indivdual at U.S.C. here in Los Angeles who is coordinating the 2/26 showing of The Price of Pleasure and was told that this showing would be for "faculty, staff and students only" and thus closed to the general public. The voice on the phone declined to divulge the physical location at which the screening would take place.

Clearly, there are some people Professors Sun and Jensen and their cronies don't want to meet face to face. I'm shocked, shocked I say! After they've shown such ethical regard for the rights and concerns of those who appear in their masterpiece of documentary objectivity, I'm positively gob-smacked that they would go into hiding at the prospect of encountering these individuals in person. How could this be?

Are the makers of this film, as it turns out, cowards as well as liars? If not, why their reluctance to have it widely seen in the very locus of the industry it claims to expose? One would think this would be the venue in which the producers would want to make their case the most fervently. They were certainly nervy enough when it came to trucking their cameras around the floor of the AEE in Vegas, hounding performers who were trying to work and promising to tell their side of the story. Of course, in that situation, it was the producers who were asking the questions.

Clearlly, when they're the ones whose actions are being "questioned" and "examined," well, that's quite a different matter.

Anyone who believes in his or her creative work stands behind it, even in the face resistance. What does it say about the motives, methods and character of these flimmakers that they batten down the hatches merely at the prospect of being confronted by a handful of angry women in the same age group as the invited students who feel they were exploited and misused in the making of this project?

Nothing good. In trying to shame all of us, they seem to have been more effective at shaming themselves, both in the content of their cinematic smear-job and in the behavior they've exhbited while trying to ensure it's viewed only by those already sympathetic to its one-note message.

Now at the SmackChron: A Two-Parter On The Violet Blue vs. AVN Smackfest on Interracial Porn

Starring Violet Blue (both of them), AVN, Madison Young, Sinnamon Love, a debate about racial stereotyping in interracial films.....and a genuine asshat named David Sullivan.

The SmackDog Chronicles: Violet Blue vs. AVN: The Great IR Porn Smackdown (Parts One and Two)

UPDATE (2-24-09): In the interest of accuracy and of having the full story out there, I've added a post in addedum detailing some details in the Violet Blue ID case (between the sex columnist and the porn star whom once used that namesake). I made no judgments there; I will simply leave that up to you, the reader....but it does paint a different and interesting (and at times, disturbing) light on the subject.

The SmackDog Chronicles: The Violet Blue Controversy: An Addedum

A Hearty Endorsement of "Carnal Nation"

It's always good to have more allies in the Sex Wars, and today, I've discovered a new journal dedicated to promoting the pro-sex/sex-positive viewpoint.

Actually, the blog Carnal Nation has been at it for more than a month now, but it is already doing significant work in its stated mission to improve the quality of debate about human sexuality. Quoting their mission statement.

CARNALNATION provides comprehensive coverage of entertainment for grown-ups. We at CARNALNATION embrace and honor human sexuality, and we promise to be current, consistent, and uncensored. We compile event listings; we publish original and incisive content; and we provide insightful commentary on a range of related topics from health to fashion to the latest toys. We know you take your fun as seriously as we do, so we invite you, our readers, to use CARNALNATION to realize and explore your interests, desires, and curiosities.

CARNALNATION was developed out of a compelling need to counteract those oppressive forces, whether internal or external, that stifle sexual growth, awareness, and fulfillment. We believe that sex is a vital human need and that sexuality is an important component of who we are as individuals, how we relate to each other, and who we want to become. In our view, fear and disdain of all things sexual have led to a society that too often vacillates between impulsive titillation and compulsive repression. Such extremes can only have a negative impact on our physical, psychological, and social well being. Therefore, we strive to inform and entertain without being pornographic or offensive. We make this commitment at all levels of sexuality: the personal, the political, and the perverted.

If the featured columnists and articles are of any indication, then they certainly have succeeded in fulfilling that commitment.

Editor Chris Hall (also co-founder, along with the equally wonderful Elizabeth Wood, of the related pro-sex site Sex in the Public Square) has arrayed an all-star cast of liberationist columnists....and the depth and breadth of quality of commentary is fascinating to say the least. A sampling based on issues recently debated here in this journal:

1) Chris Hall's follow up on The Price of Pleasure and its issues with "fair use" doctrine, in synch with comments here by both Ernest and Trinity:

The record-keeping requirements have been around for a while, but standards of enforcement have become even more arcane and inflexible in the last few years. Especially troublesome has been the law's requirement that records of the performers' ages be kept not only by the original producer, but by anyone redistributing the images. In October, Ernest Greene wrote an extensive four-part deconstruction of the film's content and Sun's ethical and legal obligations regarding the performers and 2257 records (Part 1, 2, 3, 4). Sun and her supporters claim that the film is protected by "fair use." Even the sex-positive bloggers haven't been united on whether Sun's film is fair use or not, which make the most recent entry in the debate even more interesting. Harper Jean Tobin at Polymorphous Perversity has a very precise and thoughtful legal analysis of the issues involved. Her conclusion? The Price of Pleasure can't claim "fair use" protections because fair use and 2257 apply to two entirely different sections of law. The former has to do with protecting the intellectual property rights of the original work's creator; the latter are federal regulations to prevent criminal exploitation of minors. Whether Sun (or anyone else) should be able to use those images is an entirely different matter that speaks to the nature of the impact that 2257 has on free speech.

2) Dr. Carol Queen (through her Live Nude Woman column) discusses the etiology of the philosophy of "sex-positivity", and defends the use of the term as it relates to defining her base sexual liberationist philosophy (in lieu of criticism from others):

So let me tell you what I think sex-positivity is now, lest I’ve given you the impression you have to start turning tricks to do it right. You don’t have to be bisexual (or trisexual), kinky, non-monogamous, or even sexually active. In fact, some of the most interesting discussions about sex-positivity I’ve had this year have been with a guy who’s busy organizing asexuals into a community of support and affiliation. Yep, you can even be sex-positive if you don’t ever want to have sex, just as you can be very sex-negative indeed and still have plenty of hot sex that you enjoy to the fullest.

Here’s the deal: Sex positivity means you acknowledge that sex is, or could be under the right circumstances, a positive, healthy force in anyone’s life… even if it isn’t right now. Those circumstances may not be the same for everyone (though some may be universal, like consent), but they include things like access to information, support, condoms (if relevant), a loving (or at least friendly) partner, healing from past negative sexual experiences like rape or abuse, privacy, enhanced self-esteem, etc. This list could be very long and, again, it won’t contain the same exact elements for everyone. This leads to the rest of what sex-positivity is, namely, the acknowledgement that not everyone’s sexuality, including sexual needs and desires, is the same, such that one person’s optimum, positive sexuality may not look anything like another person’s. That is, sex-positivity includes the acceptance of sexual diversity, and acknowledges that optimum sexual wellbeing for you might look different than it does for me.

3) Dr. Betty Dodson and Carlin Ross team up for a discussion on the uses and abuses of porn, via a videocast recorded through their site through YouTube. (original video here)

Other interesting articles include Chris' discovery of a proposed Chinese program for seeking out and screening adult material; Kingfish's article on the recent revival of burlesque; and a joint response to an inquiry about talking personally about kinky sex.

All in all, Carnal Nation is a welcome addition to the "sex positive" discussion, which I wholeheartedly recommend to all sexual freedom fighters.

BREAKING: 2257 Regs Upheld by US Sixth Appealate Court

This news just went over XBiz.com..I will simply reprint the article from there.

2257 Upheld in Connections Case

LOS ANGELES — The United States Court of Appeals for the Sixth Circuit has upheld the 18 U.S.C. § 2257 federal record-keeping law in the long-contested Connections case.

Writing for the majority, Circuit Judge Sutton addressed what he sees as the critical question in this issue:

"Under what circumstances is it appropriate to invalidate a law in all of its applications when its invalidity can be shown [or assumed] in just some of its applications?" Sutton wrote. "When we think about the problem that way, it is hard to understand who is being hurt by resisting the plaintiffs' call to invalidate the statute on its face."

Sutton went on to discuss the hypothetical middle-aged couple shooting their own erotica — a practice used as an example of the burdensome requirements of the statute.

"Over twenty years and numerous administrations, the statute has never been enforced in this setting, and the attorney general has publicly taken the position that he will not enforce the statute in this setting," Sutton wrote. "On the other side of the equation, we are being asked to invalidate a law in its entirety based on a worst-case scenario that, to our knowledge, has never occurred, that may never come to pass and that has not been shown to involve a materially significant number of people."

According to attorney Gregory A. Piccionelli, "The majority opinion is a piece of pretzel-logic that utterly fails to address any of the well-reasoned arguments made in the original Sixth Circuit panel's invalidation of the regulations."

"It is, pure and simple, an outcome oriented opinion by the majority, comprising mostly conservative republican-appointed jurists, that, as we expected, were going to save 2257 at any cost," Piccionelli told XBIZ. "It is both sad and dangerous that conservative culture warriors occupy seats on many of our highest courts."

Opposing the ruling was Circuit Judge Helene N. White, who in writing a dissenting opinion stated her belief that "under intermediate scrutiny the identification/record-keeping requirements of 2257 impose an unconstitutional burden on plaintiffs' First Amendment rights."

While White expressed reluctance over the prospect of invalidating 2257 in its entirety, she agreed with Kennedy that "2257's sweep is so broad … and its burdens so potentially chilling of protected speech, that requiring case-by-case challenges to its overbreadth is inconsistent with the Supreme Court's First Amendment jurisprudence."

Part of White's reasoning was based on the number of people that the regulations impact, which she acknowledged to be in the millions, saying "…we do know that millions of adults exchange or share personally-produced sexually-explicit depictions." She cited a court exhibit listing more than 13 million "personal ads containing sexually-explicit text and images on a single website for sex and swinger personal ads." Of the examined ads, 94 percent involved adults over 21 years of age.

To this observer, the court's flexible attitude towards interpreting 2257 and its ability to accomplish the goal of protecting children while imposing the least burden on protected expression was well summed up by Circuit Judge Clay: "…although the government will always have a significant interest in eradicating and prosecuting cases of child pornography, the nature of the burden imposed by a particular statute may become more evident over time."

Piccionelli agrees that the statute's continued flaws should inspire hope in its eventual overturn and that operators should not lose faith due to this ruling.

"2257 is a constitutional abomination," Piccionelli added. "We will win in the end."

Not everyone seems as optimistic, however. As for the future of the statute, "it really comes down to whether or not the U.S. Supreme Court will take the case," attorney Larry Walters told XBIZ. "But that is much less likely to happen since the circuit court upheld the law, rather than overturned it."

Walters also pointed to this case as a good example of how conservative judges are finding ways of nitpicking away at a plaintiff's challenges and imposing pre-enforcement challenges that can be difficult to overcome — including the legal fees associated with mounting a 15-year-long court case.

The upholding of 2257 presents a possible immediate threat to the industry as well:

"Webmasters [and others] should be much more concerned about possible inspections and prosecutions," Walters said. "Now that the law has been upheld, 2257 inspections could resume at any time."

Apparently, the view of the majority decision is that since 2257 has not been enforced that much and very few producers have been prosecuted under its regulations, that invalidates the claims of the plantiffs challenging the regs that the impact of the regs would be that severe. In short, "Trust us...we won't go too far."

Yeah, right...neither would the folks that originally passed the USA Patriot Act.

Although I'm sure that an appeal to the US Supreme Court is virtually assured, the chances that that Court would in fact decide to hear the decision is highly unlikely, since they have a history of generally upholding lower court decisions.

In short, we may have to put up with 2257 for quite a long time. The only alternative is direct political action to overturn the regulations.....maybe this will finally get the industry and its fans off their asses and get more politically involved.

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?