WASHINGTON, D.C. – The recently published changes to Title 18 U.S.C. § 2257 have left some industry observers wondering if American webmasters can no longer buy content from overseas content producers.At issue is language in both the Department of Justice commentary, and the regulations themselves, which attempt to clarify what types of identification are acceptable for 2257 compliance. While it is clear that American government-issued IDs are okay, the acceptability of foreign-issued IDs, such as passports, is open to interpretation.
The regulations state that foreign-issued IDs can be used when “both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States.”
The problem comes from the broad definition of “producer.”
Immediately following the above-mentioned text, the regulations then go on to define a “producer” as either a primary producer or a secondary producer. In the case of overseas content, both the primary producer and the models featured in the content are overseas. But the American website owner who purchases the content, the secondary producer, is not.
So who is the “producer” in the instance of an American website with licensed overseas content that it did not create? The comments from the DOJ provide little guidance.
“In response to these comments, the Department has clarified that the definition includes a foreign government-issued passport or any other document issued by a foreign government or a political subdivision thereof only when both the person who is the subject of the picture identification card and the producer maintaining the required records are located outside the United States.”
Unfortunately since the American webmaster is the entity that falls under US jurisdiction, one interpretation would be that it is he or she who is “the producer maintaining the required records.” On the other hand, it is the overseas “producer” who originally collects the required documentation and provides this when he or she wants to sell content in the United States.
Until these issues are ironed out in court, most webmasters are left guessing how they can stay on the right side of the law.
