On December 1, 2017, the U.S. Copyright Office went live with its new DMCA Agent database, and revamped the procedures for designating an agent for receipt of copyright infringement notices. For any reader who does not know about the benefits of designating a DMCA Agent, or which sites should take advantage of this procedure, the author’s previous article covering those topics can be found here: http://www.firstamendment.com/dmca-agent/. This article focuses on the recent changes to the procedures and the consequences of failing to comply with the new requirements for designating a DMCA Agent.

First, and most importantly, all website operators or online service providers (“Service Providers”) who might want to claim DMCA safe harbor defenses relating to user-generated content must designate a DMCA Agent using the new automated filing system (“New System”) by December 31, 2017. This includes anyone who has already designated a DMCA Agent in the old, manual filing system (“Old System”) which ceased accepting new filings as of December 1, 2016. Failure to designate an agent in the New System by the deadline (even if you already filed a Designation in the Old System) means your business is left without a DMCA Agent, and without any legal basis for claiming safe harbor protection in response to a copyright infringement claim. Instructions about how to use the New System, and the phasing out of the Old System, can be found here: https://www.copyright.gov/dmca-directory/

Why are they doing this? Supposedly, it comes down to efficiency and accuracy of the database records. The new automated, online agent designation system is superior to the Old System, since submission of the DMCA Agent information to the Copyright Office, and payment of the fee, now take place electronically – and rather quickly. Requiring updated information and renewals will keep the information contained in the Designations more current and accurate – more about that later.

With the Old System, anyone seeking to designate an agent would need to fill out a .pdf form containing all the contact information and associated domain names, which would be sent to the Copyright Office – along with a paper check – and then scanned into the database by a human being who would then manually associate the Service Provider’s corporate name with any and all domains, mobile applications, or other “alternative names” used by the Service Provider in business. That information would be uploaded into an antiquated database with limited search capabilities.

Filing a Designation in the Old System would often take weeks, and the online database was littered with errors given its reliance on human data input. Domains would often be misspelled, overlooked, and/or duplicated. Each posting would need to be carefully reviewed by the Service Provider (or its attorney) for quality control, and errors would often take weeks (or months) to fix. In fairness to the governmental employee previously responsible for overseeing the Old System, she was given a virtually impossible task, with outdated technology and minimal support staff. That person is no longer with the U.S. Copyright Office, and given the automated nature of the New System, it appears that no individual will be responsible for overseeing it.

The Old System was actually being phased out months before the New System went online in December, 2016. Widespread reports have indicated that Designations of Agent sent to the U.S. Copyright Office in the months leading up to the launch of the New System have been uniformly ignored, and not posted in the database. Notably, the filing fee checks were cashed by the government, but the Designations were not being processed or posted online. This may result in some dramatic consequences for any Service Providers who believe they have submitted valid Designations during this ‘doughnut hole’ between the end of the Old System, and the launch of the New System. If you recently filed a Designation in the Old System database, but it does not appear in this database: https://www.copyright.gov/onlinesp/list/a_agents.html, it may be gone for good. The best solution is to immediately file a fresh Designation in the New System, and confirm that the information is posted here; https://dmca.copyright.gov/osp/search.html?key=exposedonth.net&action=search. Any Designation submitted to the Old System will become invalid anyway, as of December 31, 2017, so a new Designation submitted in the automated system will be required by the end of the year for all Service Providers. Instead of wasting time trying to track down the status of a Designation filed in the Old System, simply file one in the New System and move on.

The one piece of good news in all of this chaos is that the filing fee for submitting Designations has gone down from a minimum of $135 to a flat fee of $6. That’s a substantial drop, but reflects the lack of any real human involvement in the process. The bad news is that Designations are no longer permanent like they were in the Old System. Again, all Old System Designations will expire on December 31, 2017. All New System Designations must be renewed every 3 years by filing a renewed Designation. If you amend a Designation on file in the New System, the 3 year renewal period starts over. Apparently, the U.S. Copyright Office will send out reminders of any impending renewal deadline to the email address of record, but separate calendaring of this filing deadline by the Service Provider (or its attorney) is highly recommended. It is difficult to predict how the system will work in 3 years.

One other change in the procedures is the requirement that Service Providers submit a telephone number and email address when submitting a Designation. Previously, that information was not required. Notably, the telephone number and email address will not be posted in the database, but will be maintained in the internal records of the Copyright Office.

Some practical problems are bound to arise from this transition. As noted above, some Service Providers will understandably believe that they have a current Designation on file, but that Designation may never be posted if it was submitted in the latter part of 2016. Individuals trying to locate a Service Provider’s DMCA Agent may not understand the obligation to check two independent DMCA Agent databases – either of which could have relevant information about a Service Provider’s agent. Some Service Providers will have conflicting Designations filed in each database directory. Filing a Designation in the New System may not override or cancel out the Designations filed in the Old System. Some websites may have more than one Service Provider associated with them, according to one or the other databases. Some domains may be overlooked and not included in the new Designations, and will thus lose any safe harbor protection.

Ultimately, the confusion and inconsistencies will be corrected due to the passage of time, and the elimination of the Old System at the end of 2017. For now, it is essential for Service Providers to carefully review their Designations for accuracy and continued validity. Multiple calendaring systems should be implemented to ensure that renewal Designations are filed on a timely basis. Given the importance of correctly filing and maintaining a DMCA Agent Designation, many Service Providers chose to use an attorney as their DMCA Agent, and oversee the process.

While filing the Designation of Agent in the New System is not rocket science, attorneys tend to be meticulous with filing procedures and deadlines. Our law firm has always supported the idea of utilizing the services of an attorney as DMCA Agent. Moreover, since a website’s DMCA contact form or email address is often used by third parties for a wide variety of legal notices, claims, subpoenas, search warrants, and preservation notices, a licensed attorney will be able to quickly escalate any non-routine legal correspondence, and ensure timely compliance with legal obligations. Regardless of your choice of DMCA Agent, it is essential to remain up to date on the changing legal requirements for filing and renewal of DMCA Agent Designations with the U.S. Copyright Office.

All statements made in the above article involve general information or matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. Lawrence Walters can be reached at larry[at]firstamendment[dot]com or www.FirstAmendment.com.

ANATOMY OF AN OBSCENITY PROSECUTION:

THE TAMMY ROBINSON CASE STUDY

BY: LAWRENCE G. WALTERS WESTON, GARROU & DEWITT

WWW.FIRSTAMENDMENT.COM

CAUTION: THIS ARTICLE IS NOT INTENDED FOR READERS UNDER THE AGE OF 18

Sometimes, in order to see where you are going, you have to look at where you have been. History can often be the best predictor of the future, particularly in law enforcement matters. Given the promised wave of obscenity prosecutions to be brought by the Justice Department against adult webmasters, and others involved in the industry, the time is right to take a look back at the very first obscenity prosecution against an adult Website; the case of Tammy & Herbert Robinson.

Those of us who were involved in the adult Internet industry in 1999 could not avoid the widespread media exposure relating to the Robinson case. For those readers who got involved after the case was resolved, and for those who do not remember, a brief review of the facts of that landmark case is in order.

In early 1999, Tammy Robinson, a/k/a “BeckaLynn” (www.BeckaLynn.com), received a death threat via email from some crazed individual. She took this threat quite seriously since certain information contained in the email indicated that this person knew where she lived, and it made specific reference to doing harm to her children. Without delving into the details of this threat suffice it to say that the actions described would turn any reader’s stomach. Tammy immediately called the FBI, who would not be bothered with the incident, but who referred her to the “Polk County Sheriff’s Office, Computer Crimes Unit.”

For anyone who is not familiar with Polk County, Florida; it is a largely rural, conservative, and religious county situated directly between Tampa and Orlando, both thriving cosmopolitan cities. Polk County is a bit of an oddity in this State. The old joke around here is: “If you enter Polk County, set your watch back 50 years.” Although one relatively large municipality exists in Polk County, the City of Lakeland, it is largely made up of orange groves, farm houses and churches. For 20 years, the Sheriff and the State Attorney’s Office have been battling to completely rid the county of all forms of adult entertainment. This well-publicized yet successful battle involved questionable intimidation tactics, including threats to the landowners of any adult entertainment businesses, who were charged or threatened with racketeering offenses if they failed to evict their adult entertainment tenants and consent to a deed restriction prohibiting the property from ever being used for adult entertainment in the future. It is against this backdrop that Ms. Robinson’s request for law enforcement assistance must be evaluated.

The “Computer Crimes Unit” in Polk County consisted of one sheriff’s detective: Charlie Gates. Detective Gates had been moved around from department to department, and he had a somewhat checkered past with the Sheriff’s Office. His superiors ultimately stuck him behind a computer to look for child pornography and “obscenity” violations.

Detective Gates responded to the Robinson home to begin investigating the death threat in February 1999. During the process of interviewing Tammy, Detective Gates noticed a web page displayed on her personal computer that contained her picture. Detective Gates inquired as to the nature of the Website, and Tammy openly described her involvement with an amateur Website called Cyber Dream Makers, found at: www.DreamNet.com. Tammy inquired as to whether there was anything illegal about participating in such a Website and sending her images to the business, which was based in Arizona. However Detective Gates assured her that there was no legal problem with the site. Ms. Robinson also offered to take the site down if there was any potential concern, but Detective Gates insisted that she leave it up, and that she not be worried.

Predictably, law enforcement was not being particularly forthright in this instance, and Detective Gates quickly abandoned the death threat investigation, and turned to investigating the Robinsons for obscenity violations under Florida law. As alluded to earlier, Polk County seeks to set itself apart and establish its own “community values” that are often at odds with the surrounding areas, and the country at large. Although it is unclear whether the government- mandated virtue is supported by the citizenry of Polk County, the law enforcement community vigorously seeks to do “the Lord’s work” by acting as the morality police and eliminating what it sees to be unhealthy entertainment in the form of topless bars, adult video stores and, in this case, adult Websites. The Sheriff’s Office had succeeded in ridding the county of virtually every other form of adult entertainment prior to this time, however adult imagery was now coming into the hallowed halls of Polk County in droves, via the Internet. The State Attorney’s Office, in conjunction with the Polk County Sheriff’s Office, therefore decided it was time to clean up the Internet, at least that part of the Internet that invades Polk County. This time, however, the County bit off more than it could chew.

Detective Gates initiated his investigation by posing as a customer of Tammy’s Website, and downloading a number of images to a floppy disk, (without the permission of the copyright holder). The Sheriff then took the images to the local judge who, significantly, issued a multiple “probable cause determinations” finding each individual image obscene. Investigators used those probable cause determinations to secure a tremendously overbroad search warrant that authorized the seizure of all “pornography” or any “means used to create pornography.” The warrant also authorized investigators to seize Ms. Robinson’s clothing, sex toys and bank account records.

Early one morning in March, 1999, a SWAT Team of over 20 police officers showed up at the Robinson residence while she was taking a shower. They pounded on the door and demanded to be let in. When Tammy asked for a moment to be able to put on some clothes (since she had just gotten out of the shower), they kicked in the door and paraded her around naked in front of multiple male officers before being allowed to clothe herself. She and her husband were taken into separate rooms and interrogated about their involvement in the DreamNet.com Website. The investigators tried to make the case that the couple’s children were being exposed to this adult business, and should therefore be removed from the home based on some trumped-up charge of child abuse or neglect. Parenthetically, the Florida Department of Children and Family Services quickly dismissed such allegations as absurd. During the search, the house was ransacked, and many videos were seized including the videotape of Tammy giving birth to her child. Interestingly, some girly magazines were seized, while others were left at the residence. Officers simply decided to pick and choose what constituted “pornography” and what was not. Ultimately, the couple was charged with wholesale promotion of obscenity, a felony in the State of Florida, based on the following set of images: http://www.AdultIndustryUpdate.com/Robinson.

As is obvious to even the most casual observer, the images alleged to be obscene in this case are mild compared to standard online adult fare in modern times. This was even true to a certain extent in 1999, as none of the images even depicted actual penetration. Keep in mind, however, that the Miller Test does contemplate that non-sexually explicit images can be obscene. For example, the threshold test to determine whether the Miller Test applies is whether the materials depict sexual activity or contain a lewd display of the genitals. The government can therefore charge, as obscene, Hustler-style nude images – requiring the defendant to defend based on the other elements of the Miller Test, i.e., that the images are not patently offensive, do not appeal to the prurient interest (based on community standards) and contain serious artistic literary political or scientific value.

The arrest of Tammy and Herbert Robinson for this felony activity caused great disruption in their personal and business lives. Herbert Robinson lost his job at a large supermarket chain, based solely on the arrest allegations. As noted earlier, Tammy Robinson faced the loss of her children through a Family Services investigation. They both had to scrape up money for a bail bondsman, just to be released pending their trial. Shortly after getting over the shock of the initial arrest, the Robinsons were hit with a forfeiture complaint, wherein the Sheriff’s Department sought a forfeiture of all of the Robinson’s personal property that was of any value, including computers, CD players, cameras, money and other electronics.

At this point, the Robinsons realized that they were in over their head, and needed an experienced First Amendment attorney to defend their interests. This author was proud to assist in representing Tammy and Herbert Robinson throughout all stages of this nightmare. Interestingly, another amateur adult Website couple was arrested in Polk County on the same day as the Robinsons. They were involved with the Website known as iFriends.com. Their attorney appeared on television the day after the arrest and observed that the local convenience stores carried adult videos that were more hard core than the materials alleged to be obscene in these cases. The very next day, the Sheriff’s Office raided all of the convenience stores, which quickly complied with the Sheriff’s demands by taking all adult videos out of public circulation. So much for that argument!

It then became obvious that the State was out for blood, and wanted these individuals to do time. In other words, this case was serious. Sometimes, this author has learned over the years, the best defense is a good offense. Accordingly, the decision was made to turn the prosecutors into the defendants by filing not one, but two, federal lawsuits against both the Sheriff’s Office and the State Attorney’s Office, based on various civil rights violations, including a First Amendment prior restraint claim.

This case was much different than any other the Polk County Sheriff’s Office had ever litigated in the past. Initially, it had to do with computers and the Internet – an element that was not often involved in the typical criminal case in Polk County, Florida. Moreover, this case differed from the typical obscenity case in many important respects: For example, the defense quickly filed a motion to determine the geographic scope of the community since it was unclear which community’s standards would apply in this case, and what kind of jury instruction would be given to the jury when it came time to evaluate the community standards issue. The defense also raised concerns with the way this obscenity case was being prosecuted, including the presentation of individual allegedly obscene images to the court, instead of evaluation of the entire Website “as a whole” as required under the Miller Test. The dreamnet.com site included many other models and hundreds of images that could be part of the whole Website. It has still not been determined what the “whole work” is when it comes to online materials, which do not have a convenient beginning, middle or end. Many of these issues may not be sorted out for years to come, given their complexity and the potential for varying inconsistent determinations by the courts. However, another more traditional concern raised in the Robinson case was the legality of the search warrant used to ransack the residence. As noted earlier, the search warrant authorized the seizure of all “pornography” and means used to create pornography. The case law relating to searches and seizures of materials protected by the First Amendment is relatively complex; but it has been well established that law enforcement officers cannot rifle through one’s personal belongings and decide for themselves what materials are obscene and what materials are legal. Only specifically identifiable titles may be seized, and then only after an adversary judicial determination of obscenity.3 Given the arbitrary decisions obviously made by the officers in taking some adult items, while leaving others, this warrant was patently defective and unquestionably overbroad.

As a result of the various lawsuits facing the prosecution, and the significant legal issues raised by the defense, the State Attorney’s Office began to wonder whether this case was all worth it, and became concerned that its prosecution was falling apart. Once the defense called in an expert witness from halfway across the country to testify as to the community standards issue, the prosecution knew the defense team was serious, and never let him take the stand by immediately proposing a means by which the case could be dismissed to the satisfaction of all parties involved. The case was finally dismissed on January 29, 2001.

The dismissal of the case between Tammy and Herbert Robinson was one of the highlights of this author’s practice. However, that victory was not without its moments of despair and terror for the clients. Throughout the proceedings, the Robinsons understood that they could each go to prison for a period of up to five years, and loose contact with their children (and each other) during incarceration. Moreover, they could both be convicted felons for the rest of their lives. The mainstream media took a great interest in this matter, and the case was highlighted on Fox Files, 48 Hours and the Oprah Winfrey Show. The media spotlight shone brightly on Polk County, Florida, which became increasingly embarrassed about its Puritanical morality being stuffed down everyone’s throats. Ultimately, that spotlight was too bright for the censors, and they backed down.

Several important lessons can be learned from the successful resolution in that case. First, and as poignantly illustrated by the Extreme Associates case, the government would like to establish legal precedent that allows it to proceed separately against individual images or video clips, and charge them separately as obscene “works.” Webmasters have, over the years, learned that the Miller Test requires that all obscene works must be evaluated “as a whole” and thus it may be wise to include literary, artistic, scientific or political speech as part of the sexually oriented expression on an adult Website, to assist in defending the materials. If the government succeeds in convicting a defendant based on a single image, web page or video clip, an important defense to obscenity charges will be eliminated, and the Miller Test turned on its head. It would be like alleging one page of a magazine to be obscene. To the extent that webmasters can present images in the context of stories or interrelated communications that bind all web pages together on a Website, such presentation may bolster the argument that individual images, or web pages, cannot be independently evaluated for purposes of the Miller Test.

The next lesson that can be taken from the Robinson case is more of an observation: When the government comes after you, they hit you with all they’ve got! Law enforcement in the United States will not bring a mellow test case, filed solely for the altruistic purpose of testing community standards, where conviction will result in no more than taking the material out of circulation – and all with your hard-earned tax dollars. The industry saw that approach in the charges filed against Sweet Entertainment in British Columbia in 2001. The United States’ brand of justice is a bit different: Webmasters can expect to be hit with felony criminal prosecution, “charge stacking,” forfeiture proceedings, administrative complaints, license revocations, family services investigations, and a media blitz. This onslaught is designed to overwhelm the defendant and cause him or her to loose all hope of defending against these multiple proceedings with the end goal of causing the defendant to simply give up. While this form of governmental intimidation is usually very successful, it is often nothing more than a bluff. Many of the counts, proceedings, and allegations may ultimately be unsupported by the facts or the law, and are often dismissed after evaluation by a competent attorney. The key is to weather the storm past the initial onslaught, and start picking apart the government’s case – bit by bit. The prosecution is not used to this sort of perseverance and the microscopic analysis of its allegations; which is a benefit to the defendant.

Something else that the industry can take away from the Robinson case is inspiration. Tammy Robinson, a housewife and mother of three, who had never been in trouble with the law in her life, suddenly found herself facing a massive governmental felony prosecution. Her husband was also charged, stressing their marriage, and her children were in danger of being taken away. Yet as a result of all this, a freedom fighter was born, and Tammy Robinson decided to stand and fight, instead of rolling over and playing dead. There was some indication that the government would have initially been satisfied if the Robinsons were willing to shut down their Website and agree to never enter the adult entertainment industry again. Instead of accepting an agreement so offensive to First Amendment rights, Tammy turned up the heat by launching a legal defense fund Website – the first of its kind. On the site, BeckaLynn posted nude pictures of herself in exchange for donations to her attorneys; something that irked law enforcement to no end. BeckaLynn had a loyal following on the Web, and those who learned of her story after her arrest came to her aid through significant donations to the legal defense fund. These donations allowed Tammy and Herbert Robinson to file a pair of federal lawsuits against Polk County law enforcement officials, which ultimately turned the tide in their favor. This sort of industry and public support was the single most critical factor that drove the favorable result in her case. Without sufficient funding, the Robinsons would have remained on the defensive instead of taking the offense in this case against those who are prosecuting her. As the adult Internet industry braces for the onslaught of federal criminal indictments promised by the Ashcroft Justice Department, it should remember what worked in the past and lend its financial and moral support to those who are singled out for this initial round of prosecutions, regardless of the personalities involved or the offensive nature of the content selected for prosecution. The government is expected to pick easy targets; those whom other industry participants can readily agree are on the fringe, or are somehow deserving of criminal prosecution. Thus far, the government has focused on sexual violence, and defecation material. If the industry turns its collective backs on those selected for prosecution in these early stages, it will be doing itself a substantial disservice in the long run.

A final lesson that can be learned from the first obscenity prosecution against an adult Website is that of courage. Any form of litigation will be a give and take process where one minute, you’re on top of the world, and the next, you feel like the case is over and you’ve lost. The Robinsons faced years of incarceration in prison and a conservative jury pool, but never lost hope or faith in their attorneys, even in the darkest times. Some hearings went well, and others were a disaster. There were unexpected difficulties and surprises around every corner, and no amount of preparation can account for everything that could happen in the course of complex state and federal court litigation. At any point, the Robinsons could have thrown in the towel and said “We’re finished, this is too expensive, we’ll simply give them what they want.” But that never happened – not for a minute. Some adult Internet industry participants are quick to do what is in their own best interests without consideration for the greater good. Freedom Fighters like Larry Flynt (Hustler), Phil Harvey (PHE Entertainment, d/b/a Adam & Eve) and Joe Redner (Mons Venus) refuse to be intimidated by government threats and roadblocks along the path of their individual fights for freedom. The price of freedom is eternal vigilance. The right to free expression has cost some their lives and others a substantial amount of their personal liberty.

The time is soon upon the adult Internet industry where companies will be fighting for their lives, and their owners will be fighting for their freedom. Attorneys and other industry leaders will have little time to write articles and give speeches, to provide the industry with the benefit of our experiences. Instead, we’ll be fighting in courtrooms across the country and endlessly toiling away on legal briefs and motions, in the effort to ward off the new wave of government censorship. It is this author’s sincere hope that those selected for obscenity prosecution will stand and fight, and that other industry participants will support those defendants in their efforts. Tammy and Herbert Robinson stood and fought, and their “Notice of Dismissal” hangs on this author’s wall as an eternal reminder of their courage and vigilance. Their actions should truly be an inspiration to an industry under siege. If the defendants in the next round of cases show the same courage and tenacity, the government is likely to rethink the wisdom of its censorship campaign.

Lawrence G. Walters, Esq., is a partner with the law firm of Weston, Garrou & DeWitt, which maintains offices in Orlando, Los Angeles and San Diego. Mr. Walters represents clients involved in all aspects of adult media. The firm handles First Amendment cases nationwide, and has been involved in significant Free Speech litigation before the United States Supreme Court. All statements made in the above article are matters of opinion only, and should not be considered legal advice. Please consult your own attorney on specific legal matters. You can reach Lawrence Walters at Larry@LawrenceWalters.com, www.FirstAmendment.com or AOL Screen Name: “Webattorney.”