H'wood fights DOJ on porn rule

MPAA claims undue 'burden' on legitimate films

Hollywood and the U.S. Department of Justice are warring over regulatory language that requires stricter record-keeping for motion pictures that include steamy love scenes.

Known as the Pence Amendment, the regulation is designed to crack down on a subset of pedophiles who produce simulated child sex scenes but threatens to ensnare legitimate filmmakers in its dragnet.

As originally written by Rep. Mike Pence, R-Ind., the amendment would have required film and TV show producers to file the same records with the DOJ that are required by hard-core pornographers. Those filings, known as 2257s for their section in the federal code, require certifications that all actors are of age, who the custodian of records is and where the records reside. The 2257 label must appear before every film.

The amendment was the object of a pitched battle in Congress that eventually led to a compromise Pence and the studios could live with. Under the compromise, the studios would simply have to certify that they keep the records in the normal course of business.

While the studios didn't like the extra requirement, they felt they could live with them.

But since President Bush signed into law the Adam Walsh Child Safety Act in July 2006, Hollywood has been fighting DOJ attempts to do with a regulation what could not be done in Congress.

"The motion picture industry fully supports the goal of protecting children," MPAA chairman and CEO Dan Glickman said. "In fact, we are a world leader in safeguarding young people that work in our productions. At the same time, a law that aims to crack down on child predators should not unduly burden legitimate industries that are providing a safe working environment for children."

The studios contend that the DOJ's proposed rule goes too far, arguing in a brief filed by the MPAA that the department's decision to do the rulemaking in two parts leaves the studios liable for criminal acts, that its definition triggering the reporting requirements is too vague, that the proposal would make it difficult to "pick up" foreign and domestic films and that it could require a 2257 label on thousands of Web site pages the studios use.

It was unclear why the DOJ decided to break the rulemaking into two parts — one part dealing with the definitions that would trigger reporting requirements and one that would define the "safe harbor" that would allow the studios to escape the requirement. Calls to the DOJ for explanation went unreturned.The department didn't want to hitch the "safe harbor" as envisioned in the legislative compromise with the new rule because DOJ attorneys feared that it would make a constitutional challenge to the rule more difficult. The regulations involving the 2257 requirement have bounced around the courts, and adding the safe harbor would add another factor to that legal calculus.

Leaving it out, however, has caused legal heartburn for the studios.

"In light of this statuary framework, the department's rulemaking raises several fundamental problems," the MPAA wrote in its comments. "First, the department has yet to issue regulations implementing the statutory 'safe harbor' provisions; as a result, there may be some ambiguity about the availability of the safe harbor, yet the burdens imposed by the 'lascivious exhibition' provisions are in effect."

The MPAA is concerned that what is known as "the gap" between the implementation of the new regulation on simulated child sex and the implementation of a "safe harbor" protecting the studios from federal criminal prosecution leaves them open. Failing to comply with the 2257 provisions is punishable by five years in prison for the first offense and 10 years for subsequent offenses.

The DOJ's proposed rule says that it is "preparing a separate rule to implement this section."

While the studios expressed concern about getting caught up in the dragnet designed to catch pedophiles, they also expressed concern with the DOJ's definition of simulated sex.

The DOJ proposes using the so-called Dost test. United States v. Dost is the leading court case that determines whether a visual medium constitutes a "lascivious exhibition" of a child. It includes a six-part test, though it is not necessary to have all six parts satisfied to meet the test. While the test is controversial, it was upheld by the 9th U.S. Circuit Court of Appeals and has been used in other cases.

The MPAA argues, however, that it is incompatible with the new law and that the DOJ should give filmmakers reasonable guidance.

"Under this broad approach, the stringent record-keeping and labeling requirements for materials containing 'lascivious exhibition of the genitals or pubic area' could conceivably be read to apply to an image of a woman in skimpy underwear," the MPAA wrote.

The studios also raise concerns about the films made abroad or by domestic producers unaffiliated with the major studios. The MPAA argues that it shouldn't be held responsible for a film made in another country that doesn't have the same requirement.
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