A Look Back at 2017: Legal Developments

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2017: Legal Developments in Adult Industry Law

The year 2017 brought some major legal developments in Adult Industry law.  From intellectual property to age-verification, and all kinds of issues in between, some revolutionary changes are on the way.  Here, I’ll break down and summarize some of the highlights.  Note that this article is current as of December 15, 2017.*

TO DO’s:

Update your DMCA information New Digital Millennium Copyright Act Provisions

The Digital Millennium Copyright Act (DMCA) is a United States law that provides a safe harbor for websites when content, infringing on a third party’s copyright, is uploaded or posted by a user (e.g., tube sites, blogs, etc.). In such a case, the DMCA will relinquish the host site of liability for the copyright infringement so long as the site publishes and implements “Notice and Takedown” procedures in accordance with the law.  Without these procedures, the site operator can be held liable for users’ uploading or sharing content which violates the copyright of a third party.  You used to have to just register once and then you were done.  A recent change to the law now requires re-registration before end of 2017 to avoid losing protection, and re-registration every three years to maintain protection.

 

File Trademark Applications

Trademark registrations afford their owners very significant benefits. One of those benefits includes the ability to stop others from using confusingly similar trademarks anywhere in the United States.

For decades, sexually-explicit trademarks were banned by the U.S. Patent & Trademark Office as unregisterable for being “scandalous” or “immoral.”  However, the case of In re Brunetti, finally changed this. In that case, the U.S. Trademark Trial and Appeal Board affirmed the U.S. Patent & Trademark Office’s (USPTO) refusal to register FUCKED spelled “FUCT” for a line of “streetwear” apparel on the ground that the mark was a “vulgar” term that was barred from registration.

On December 15, 2017, the U.S. Court of Appeals for the Federal Circuit held that the bar on registering immoral or scandalous trademarks is an unconstitutional restriction of free speech guaranteed by the First Amendment.  This means that adult industry trademarks are now registerable, and entitled to all of the same protections that registered marks for mainstream businesses have received over the years.

So if you have unregistered brand names, or trademarks that were rejected by the trademark office in the past, file trademark on them now.  Note, however, that this is the current state of the law in the United States. In other countries, trademarks may still be rejected as the First Amendment is not applicable there.

 

Privacy Policy/Terms of Use

If you don’t have a Privacy Policy or Terms of Use docs for your app or website, get one.  If you do have one, check it for accuracy and update it where needed.

Need a reason WHY? – Recent settlement in a class action suit against Standard Innovation.  About 300,000 people purchased Standard Innovation’s We-Vibe devices, and about 100,000 downloaded and used the app, according to a memo filed with the settlement agreement.  Standard Innovation was collecting data (settings like vibration mode and pattern) on usage of vibrators without disclosure in a privacy policy.  No third parties had access to the data.  Standard Innovation’s collection of data was in line with what other IoT device companies do. The problem was the lack of disclosure, which usually would appear in a Privacy Policy.  Total payout was $5 million Canadian – MUCH MORE THAN WHAT THEY WOULD HAVE PAID AN ATTORNEY TO DRAFT A PRIVACY POLICY.

So again, moral of the story – Get a Privacy Policy and Terms of use if you don’t already have them.

 

PREPARE FOR:

Digital Economy Act in Europe is now law

New law requires age verification for porn sites accessed in the UK.  The goal is to begin enforcement in April of 2018.  Unlike the versions of the Human Trafficking Prevention Act in the U.S., there is no fee for removal of a filter on devices.

Law gives the UK government sweeping powers, for example:

– Fines up to £250,000 for non-compliance,

– Tell ancillary providers, like payment processors and facilitators of advertising to terminate services from the site, essentially starving the site of revenue, and

– Block sites at the ISP level.

A Regulator has not yet been appointed, so enforcement may be pushed back.  However, start preparing now.  Look into third party services where necessary.  A couple of options include: Verime and AVSecure.

 

Net Neutrality Repeal in the United States

On December 14, 2017, Neutrality provisions were repealed by the U.S. Federal Communications Commission. Under Net Neutrality, as it previously stood, ISPs were required to treat all internet traffic equally. Thus meant they were barred from slowing down, speeding, up or blocking content, websites, or apps legally accessible in the United States.

This repeal could potentially have sweeping ramifications in the online adult industry. Example scenarios include:

– It is possible that ISPs might slow loading of, or even block, adult content;

– There is the potential that ISP’s may require consumers pay additional fees to access adult content; and,

– Further, ISPs may require adult businesses pay additional fees in order to be accessible to consumers.

As you can imagine, this could hurt the adult industry’s ability to do business and access customers, as well as potentially inhibit the public’s ability to access legal content.

However, these are just hypothetical possibilities.  We’ll have to wait and see what the actual effect will be. So keep an ear out for updates.

 

KEEP AN EYE ON:

Human Trafficking Prevention Act

This model bill would require device manufacturers to pre-install “obscenity” filters on devices like cell phones, tablets, and computers.  Consumers would be forced to pay up $20 per device to have the filter removed/disabled.  Effectively, the law would be a tax on pornography.  The bill looks slightly different in the various states where it is being reviewed.  It was introduced in some form in more than a dozen state legislatures:

– AL, FL, GA, IN, LA, NJ, ND, OK, SD, TX, WV, WY

– Rejected in WY and ND already – Woohoo!

More info can be found at Electronic Frontier Foundation.

 

Child Protection and Obscenity Enforcement Act (a/k/a Section 2257)

The Stated Purpose of the law is to protect children from being the subject of imagery depicting actual explicit or simulated sex.  The Real Purpose oft he law is a means for the government to harass pornographers.  The law requires of pornographers:

– Onerous record-keeping.

– Compliance with burdensome inspections.

The current status is that the Court sided with the adult industry on 4th Amendment grounds based on unreasonable search and seizure.  The 1st Amendment challenge is currently in progress.  The Free Speech Coalition (FSC), the plaintiff in the case, recommends still complying with the law until a final ruling is made.  Visit FSC’s website to learn how to become a member.

 

GENERAL REMINDERS:

Copyrights

File copyright applications on all of your films, photos, etc. every three months for work published in the previous three months.  This is critical if you ever need to pursue an infringement case against a third party for stealing your work.

Patents

Patent and patent litigation is becoming much more common in the adult industry.  Patents protect innovative technology.  Patent your own innovations using patents.  Avoid infringing on the patents of others.

In conclusion, take a look at your business as it currently stands, and determine whether you need to implement anything to prepare for or comply with the changing laws.

*Remember, this list shows examples of legal updates, and is not meant to be a complete list.  It is also not legal advice.  For legal advice, consult an attorney.  If you’d like to consider hiring Maxine Lynn as your attorney, visit her law firm’s brand new website at www.SexTech.Lawyer!

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