LOS ANGELES — After a raucous Winter Wonderland party the previous evening, XBIZ 2020 attendees bustled about and guzzled steaming coffee at the Sunset Lounge of the posh West Hollywood Andaz Hotel to perk up for an illuminating Day Three. And for the first panel that bright morning, a veritable Who’s Who of legal eagles flocked to the spacious Studio 4 to present “The Legal Landscape: A 2020 Preview.”
Moderated by the expertly time-sensitive Michelle LeBlanc, executive director of the Free Speech Coalition, top adult-savvy attorneys such as Corey Silverstein, Larry Walters, Paul Cambria, Jeffrey Douglas, Maxine Lynn, Allan Gelbard, Reed Lee, Nick Zargarpour and Gill Sperlein offered up sage advice on the biggest regulatory issues facing the biz.
Silverstein, who had to duck out of the panel a smidge early to catch a flight, went first, discussing the GirlsDoPorn case and noting how “for the first time, we’re seeing the United States government use the new sex trafficking law to prosecute a company.” And while he supported the crackdown on the dubious practices of the operators behind the site, he pointed out that it could pave the way for others to get targeted.
“Don’t engage in unethical, immoral business practices that are bad for the industry as a whole, but make sure to be informed about the latest laws to ensure you are in compliance,” he suggested.
Lynn then commented on favorable developments for the adult industry in terms of copyright issues and how “scandalous and immoral trademarks,” even those that may be considered “profane,” are now more freely permitted. She encouraged attendees to protect their intellectual property with trademarks, especially if they had previously held off over concerns about their brands being too graphic to qualify.
As for Zargarpour, he focused on the California Consumer Privacy Act (CCPA) — which went into effect Jan. 1, 2020 — by delving into the requirements for companies seeking to be in compliance.
“For anyone with the personal information of more than 50,000 people or devices, even if only one is from California, you need to be in compliance,” he began, “or if 50 percent of your income comes from buying or selling personal information, you are also required to comply, as well as if your gross revenue is in excess of $25,000.”
Regardless of whether a company hits those thresholds, Zargarpour recommended folks secure their data as much as possible, given the liability for any breach of data and massive fines that can result
Then, attendees heard from Lee, a lawyer from Chicago who practices primarily free speech and constitutional issues, who shared his thoughts on the ultra-draconian Fight Online Sex Trafficking Act (FOSTA) — which he views in more narrow terms than most, he confessed. The threat, in his estimation, “centers on previously established standards of immunity which have been overturned and which now impacts vicarious liability considerations in state versus federal court.”
LeBlanc kept the panel moving at a steady clip, with a stopwatch and 30-second warnings, and soon it was Larry Walters’ turn. The First Amendment attorney, who has repped the industry for over 30 years now and is one of the lawyers fighting FOSTA, said, “I don’t have to tell you how disruptive FOSTA has been on the industry, and how it’s difficult for platform operators to discern whether content is facilitating or promoting prostitution, which in turns causes them to take extreme measures to safeguard against litigation by going overboard with censoring and shutting down anything even remotely questionable.”
He added, “We’ve seen people being pushed back into the streets, with the murder rate and harm rate dramatically increasing,” which is why “we are challenging the law in the D.C. Circuit.”
Up next was Sperlein, who used to be in-house with gay brand Titan Media and has worked for decades in adult. He stated that FOSTA was pushed through by both sides of the political spectrum and that “the only positive outcome from it, really, is an increased amount of discussion related to decriminalization.”
He mentioned that efforts are being made to protect sex workers with better laws so that, for instance, “If a john engages in acts of violence against a sex worker, [the victim] can report it without fear of being prosecuted.”
Gelbard, an entertainment lawyer for 25 years, delved into business considerations for agents who “owe performers a fiduciary duty” and should not be sending their clients to dangerous or questionable settings. He said if a “so-called producer is filming on their phone, in essence as a collector who isn’t really planning on selling such content, it could set up performers for getting in trouble with the law” as it skirts the bounds of what is permitted.
Cambria — who explained he has “50 lawyers in [his] office” — said he has challenged “a number of laws, even up to the Supreme Court” with a storied background that includes major Hustler and Vivid cases. Now, he is representing Backpage, who he said are being “prosecuted under the Travel Act, which has never been applied in this fashion before,” and while judgments have been handed down against them in court, he expects to win, nonetheless, with appeals.
The main issue, he explained, is “they are being held liable for the conduct of third parties,” with allegations by prosecutors that there are underage victims, which he says is a common tactic in other similar trials. He predicted that President Donald J. Trump may offer up a few token obscenity prosecutions of large companies to sate the desires of religious conservatives, but that Cambria will be ready to defend the biz should that occur.
Then, for the next three hours in Studio 4, the FSC Leadership Conference was held, exploring issues of minority representation in companies, Assembly Bill 5 (AB5) and the CCPA in greater depth. During the first third, “Diversity Is Good for Business,” presenter and consultant Brickson Diamond of Big Answers encouraged companies to hire employees of a variety of backgrounds.
He noted how he increased diversity at the Sundance Film Festival after being inspired to build up the Blackhouse films platform initiative, which led to more filmmakers of color. He laid out his method for others who wish to follow suit, describing his approach as “carrot and stick” with a mix of soft and hard tactics to identify a rich space, see who the missing players are and create a model that works.
“Inclusion is different than diversity,” he observed. “Inclusion is inviting me to the party. Diversity is including music I want to dance to and food I want to eat.”
Though the imagery and content of his PowerPoint slides, as well as his discussion, were essentially laser-focused on increased representation for African-Americans, celebrating everything from their musical contributions to superhero movies that feature them, when asked by the audience if he makes an effort to include LGBTQ-plus, Hispanic, Asian and other under-represented groups in his campaign, he said he mostly focuses on what is familiar to him “because I don’t want to appropriate other cultures.”
During the second portion of the FSC Leadership Conference, LeBlanc outlined the differences between employees and contractors in the eyes of California with regards to Assembly Bill 5 (AB5) and how “the way you’ll be classified is partially due to your comfort with risk.” Companies seeking to comply can either play it safe just treating all workers as one particular kind, or if they are confident in their ability to explain why certain cam models, for example, do not fall into the requirements, they can take a balanced approach.
She was joined by the main presenter of the seminar, Walter Wotman, a CPA since age 28 who is now 67. He said, “I’ve seen California change quite a bit. When I started as a CPA in Silicon Valley, all the coders were independent contractors, things quieted down, then construction companies got hit with day labor issues, and now with AB5, it basically says everything applies from Dynamex and Borello, two court decisions that established certain parameters, apply.”
Noting how government regulation is a tricky path to navigate, Wotman said that legislators “didn’t realize there was a whole host of industries who were independent contractors, that this would affect. See, the elements that must be met for an independent contractor are that the worker must be free from direction and control of the hiring company, the work performed must be outside the usual course of the hiring company’s business and the person or entity is customarily engaged in an independently established trade business. You have to satisfy all three to determine someone is an independent contractor, whereas before it used to be more loose.”
Shrugging, he said, “If lawmakers knew the kind of fight they’d be up against, they may have thought twice,” as he foresees legal challenges proving triumphant in the future.
He also remarked on special situations where AB5 is unlikely to cause trouble, such as content sharing. “Two entities come together to pool their resources, and this is legally known as a partnership. AB5 doesn’t apply, given that it’s an equal partnership, with each person or entity having ownership interest and joint control over the duties and productivity.”
Still, the days of using 1099s as carte blanche solutions are over he said, though having ambiguity in the law is not necessarily a bad thing should a legal challenge arise, because in most cases “if you can’t show that there has been precedent decided against you that you can extrapolate and compare to being an analogous situation to you, you can have an advantage.”
He concluded, “Really, this law hurts the small, everyday people, and the only workaround I’d recommend is setting up a loan-out corporation.”
He also recommended creating a C Corporation. While such workarounds should be discussed with experts, in the meantime, LeBlanc said the Free Speech Coalition is working on language changes in the bill and carve-outs with their lobbying efforts.
Then, in the third part of the FSC Leadership Conference, LeBlanc introduced Alan Friel of BakerHostetler, who gave a more detailed and often highly technical, PowerPoint slide-heavy outlook on the CCPA. Noting that data collection includes IP addresses, cookies and just about any unique digital identifier from processing unique pieces of information, companies can find themselves in need of compliance rather quickly even if the threshold of 50,000 seems generous at first glance.
“If you have a website or mobile app and you’re processing 138 unique pieces of info a day, you’re now under the CCPA, so pretty quickly it gets to the mom-and-pops.”
And while the law went into effect on Jan. 1, 2020, with a 6-month delay in enforcement, the Attorney General could say there is no safe harbor per se, which is why companies should comply soon.
Additionally, while the law only just went into effect, there is a 12-month “look back” for “information you’ll have to provide, with the exception of business-to-business communications data, which are out of the scope.”
Web operators will have to provide notices to consumers based on various categories of data handling, offering them opt-out options and removal of data requests. The good news, he says, is the Attorney General only has about seven lawyers in the enforcement division, making it hard for the government to go after companies. And when an audience member asked if he foresees a national law akin to CCPA going into effect, Friel was doubtful.
Elsewhere, the panel “Understanding Talent’s Rights in an Agency Relationship” featured lawyers Allan Gelbard and Nick Zargarpour, alongside agency ATMLA owner Mark Schechter, for a frank discussion about some pitfalls talent needs to avoid when dealing with talent agents. The main takeaway was to make sure to have everything in writing, with Zargarpour emphasizing what a red flag it is when an agency only wants an oral agreement. Gelbard agreed.
“I think you would be nuts to engage with an agent without something in writing,” he said.
As for Zargarpour, he also spoke about all court battles being a “beauty contest” between who has the most compelling case. Simply charging fraud is not enough to get a judgment in one’s favor. “Judges have a lot of requirements for fraud,” he said. “You have to keep a clear record of every interaction if you want to make your case.”
And in the “Age Verification: An Unstoppable Global Trend” panel, Tim Henning of the Association of Sites Advocating Child Protection (ASACP) discussed the future of age verification in the wake of the U.K. failing to pass an AV overhaul.
“It’s never about ensuring you get 100 percent of minors,” he said. “You’re looking to stop about 80 percent realistically.” He further noted how 85 percent of traffic is now mobile-based, either from a phone or a tablet. And because companies and providers already know so much about the ages of their customers, a lot of the verification can happen on that end. Add to that the emphasis on biometrics in mobile devices, and in five to 10 years, he foresees the 80 percent AV number to be easily attainable.
Then, in the “Porn and Pleasure Products: A Money Making Merger in Sextech” panel, Sssh.com’s Colin Rowntree, Unzipped Media’s Maxine Lynn, Daniel Abramovich and Ela Darling talked about the future of VR spaces online.
Darling was particularly adamant about how next-level online VR worlds can be beneficial not just for sextech but as spaces that adults can hang out without kids around, even if they are sex-based.
“I just don’t want to hang out with preteens,” she said. Rowntree talked about the prevalence that current VR spaces play in the lives of users, to the point where some of them are never leaving the house, and how people have found a way to monetize that in a variety of ways.
“We have wedding planners who plan full weddings for people in VR worlds, that have never met in real life,” he said.
Darling emphasized that what she is talking about “isn’t replacing real life, it’s adding to it” and how especially beneficial that can be for specific niche communities to interact globally, especially those with niche sexual interests.
In the “APAC Presents Consent, Ethics and Liability in a Post #MeToo World” panel, APAC’s Tim Woodman led a discussion with Kink.com’s Fivestar, Adult Time’s Bree Mills, Wicked’s Jessica Drake, Mile High’s Jacky St. James and Lust’s Casey Calvert about consent issues in the adult industry.
Drake gave a very in-depth response to a question regarding how the industry has changed. She spoke about how the industry at one point was a much smaller community, with studios controlling contract stars. Everyone had both a “yes list” and a “no list” for what they would and wouldn’t do and who they would or wouldn’t work with. Later, when camming and piracy came along, “no lists” for new performers started disappearing, because there was such an explosion of women willing to do more and more to try to break into the industry that studios had easy access to performers without boundaries.
She concluded though by talking about how social media has put a lot of the power back into performers’ hands, because they can control what platforms they appear on, what content they create and how they promote it, as well as providing a public forum for calling out bad actors in a way that gets disseminated quickly and loudly through the industry.
St. James made a point about how important communication is with cast both before and during a shoot.
“Everything is about communication, communication, communication,” she said. She explained how she is fully up-front with her cast before the shoot starts about exactly what will happen and what she expects, and that she makes sure to keep communication between herself and the cast and the crew, and between the castmates with each other, throughout the shoot to make sure no boundaries are being crossed.”
And, among the new panel topics that debuted at XBIZ 2020, was “Adult Industry Journalism: Inside and Outside the Business,” organized by XBIZ News Editor Gustavo Turner and featuring four noteworthy reputable voices who report on the business.
Industry insider Holly Randall, a director, producer and photographer-turned-influential-podcaster, Rolling Stone magazine sex-work-beat reporter EJ Dickson, podcast producer (“The Butterfly Effect,” “The Last Days of August,” public radio’s “This American Life”) and Jacky Goldberg, the Los Angeles Porn Valley correspondent for French cultural mag Les Inrockuptibles, opened up about the strategies and challenges faced by reporters trying to tell stories without getting caught between the malicious “War on Porn” propaganda and the industry’s instincts for self-protection.
The panelists discussed how they got into “porn reporting,” how they negotiate the demands of civilian editors who are not familiar with the industry, the influence of social media reactions in their reporting and the sometimes unrealistic expectations that the public, both inside and outside the industry, may have about the ability of journalism to “speak the truth to power.”
Then, in the “Mojohost Presents: A Mastermind Session in Implementing 2020 Tech,” MojoHost’s Brad Mitchell talked about the difference between static and dynamic websites, and how that causes a “huge impact on things like database processing.” Dynamic sites are constantly asking hundreds of questions of any visitor on a data-processing level and are then able to provide targeted content, whereas static sites do not change in response to visitors.
After such a wealth of knowledge-sharing from the jampacked day, attendees gathered for drinks, food and smoke breaks, before vanishing into their hotel rooms to get ready for adult’s biggest night, the XBIZ Awards, which crowned the XBIZ 2020 conference with an unforgettable red-carpet affair, hosted by Stormy Daniels and presented by MyFreeCams at the swank JW Marriot L.A. Live hotel in downtown Los Angeles.