Legal questions from a newbie

[Jonathan]

A little confused on 2 legal issues for adult site content, wondered if someone might offer a general opinion.

1. What happens when a 'Custodian of Documents' (COD) for your 2257s becomes defunct? Example would be a company produces and sells web content to a site owner. The owner lists the COD on the site, using the information provided by the content company. The content company then goes out of business and their contact info in the COD is no longer valid. Does the site owner become liable for the content? What if the site owner does not even know the content company is now gone and their corporate seal made into a boat anchor?

2. It seems somewhat common to list a DMCA representative (through an 'interim designation') like your attorney or accountant as your contact point. Seems to be an accepted role for them and helps shield the privacy of the copyright representative. Why are the same people NOT commonly used in the role of 'Custodian of Documents' for 2257 forms? What am I missing there?

Any light somebody could shine on these questions would be sincerely appreciated... Not expecting any sort of formal legal advice - just a general opinion.

Thanks!

[Hammer]

I'm notsure where you got your information but It's not legal to list the custodian of records for the company you purchased your content from in the first place so it wouldn't matter if they went out of business. The law says that you must list yourself or an employee of your company as the custodian and you need to keep those records for several years after your own company goes defunct, if it ever does.

I have heard from one attorney that he believes an attorney COULD be used as the custodian but it's certainly not common practice and I can't imagine any accountant that would want to take the chance of possibly having the feds show up as his office to inspect a client's records.

Back in '95 when this all hit the fan a few companies were started with the express purpose of maintaining the 2257 documents for customers. All of the rules would have been followed, including keeping records of every url an image appeared on, alphabetizing the lists by last name, keeping redundant hardcopy backups, etc. but those companies were shot down. That proves that the changes to 2257 had nothing to do with protecting children and everything to do with making life difficult for pornographers.

BTW, after the recent victory for our side in the 6th circuit, much of this may now be a moot point for anyone that doesn't produce their own content.

[porn punk]

http://newyorklawschool.typepad.com/...rcuit-fin.html

[pepperlegal]

1. If you are the secondary producer, as that term is defined under the federal regs, YOU must act as the custodian of records, not the primary producer. Hammer is spot on there.

2. The regs require that the records be kept at the producer's place of business, so the analogy to the DMCA representative doesn't fit here. The only way I could see having an attorney or accountant fit this role is if you, as the producer, leases office space from the attorney/accountant and use that space as your principal place of business. There are some serious logistical considerations here, but it presumably could be done.

Of course, get yourself an attorney to advise you on this formally.

[Jonathan]

Thanks for the responses, each added to the dent created in my forehead from realizing the basics.

I guess part of my (unwarranted?) concern is on the voracity of a producer from whom we purchase content. If they have forged or munged the 2257 documents then it sounds like the site owner becomes liable. Which doesn't make sense which usually means I still don't understand something basic.

Our concern is that we will be producing fetish content with almost exclusively mature talent. Its not a fear of age risk that bothers us, it is more wanting to be sure we leave no "achilles' heel" in our initial setup. If we sub-contract some production or purchase from others we do not know well is the area of concern.

Sorry for the newbie-ness. Just would prefer to be freaky about basic legalities now rather than regret later.

Originally posted by pepperlegal
1. If you are the secondary producer, as that term is defined under the federal regs, YOU must act as the custodian of records, not the primary producer. Hammer is spot on there.

2. The regs require that the records be kept at the producer's place of business, so the analogy to the DMCA representative doesn't fit here. The only way I could see having an attorney or accountant fit this role is if you, as the producer, leases office space from the attorney/accountant and use that space as your principal place of business. There are some serious logistical considerations here, but it presumably could be done.

Of course, get yourself an attorney to advise you on this formally.

[pepperlegal]

Yes, your concern is well-founded, and is one of the main problems with the law: you are beholden to the primary producer to ensure that the documentation is correct.

At the end of the day, you want to work with reputable companies with a good track record. Obviously, there's no fool-proof manner in which to ensure 100% compliance in this area - it just doesn't exist. The goal is to minimize your risk and exposure by using best practices as much as possible.

[Hammer]

"Our concern is that we will be producing fetish content with almost exclusively mature talent."

This obviously isn't legal advice but as long as the fetish isn't something extreme like bondage involving rough sex or something and as long as the majority of the content is "mature", I wouldn't worry about anything more than making sure you obtain 2257 documents for any content you use on the site and come up with a reasonable filing system so you can easily put your hands on the docs for any content that might be brought into question. Technically you should list yourself or an employee as the custodian on your 2257 statement but I think some language to the effect that you do not actually "produce" any of the content on the website but do have the necessary records and will provide them to any government agent that requests them along with some way to contact you, either a phone number or email address, would be sufficient.

In the case of mature content I'm sure that any falsification of IDs would involve claiming to be younger rather than older.