educational

Third-Party Record Keepers Beware

In addition to '2257, there are two federal statutes of which aspiring third-party record keepers need to be aware. They are 18 U.S.C. § 2, aiding and abetting, and § 371, conspiracy. You will see that being a third-party record keeper may not be such a desirable line of work, especially in view of the Obama Administration's apparent course of not jettisoning the Justice Department's obscenity prosecution efforts.

We start with Criminal Law 101. The theory underlying all of this is that multiple criminals acting together stand to get into more damaging mischief than one person acting alone. So the law responds accordingly. Aiding and abetting is what it says, helping in the commission of a crime. Fundamentally, aiding and abetting requires three elements: First, someone must commit a crime; second, the aider must know about it; and, third, the aider must assist in the completion of the crime. Then, the aider is just as guilty as the primary criminal.

Conspiracy is a prosecutor's best friend. All that is required is an agreement to commit a crime. Once there is an agreement, the crime of conspiracy is complete. So for example, if two people conspire to rob a bank and then do rob the bank, they each can be convicted of two crimes, conspiracy and robbery. If they agree to rob a bank but, when they get to the bank, they find five police cars parked out front (who got wind of the plan), and for that reason change their minds, they still can be convicted of conspiracy but not robbery.

Now, apply those principles to the record keeper situation. Remember, the knowledge element of obscenity is simply a general knowledge that the material is sexy. Someone can be convicted of obscenity by distributing a motion picture that he has never watched. Knowing what kind of movie it is generally is enough.

The third-party record keeper arguably facilitates the distribution of the target movie because, according to the law, the movie cannot be distributed without 2257 compliance. Is that aiding and abetting? Nobody wants to be the defendant in the test case. Is it conspiracy? There is an agreement that the producer will distribute the materials, essentially, "You send out the movie and I will keep the records." That is dangerously close to an agreement saying, "You rob the bank and I'll drive the getaway car."

Some critics probably will say, "DeWitt is out of his mind; he's teaching the prosecutors how to prosecute." To the contrary, take it from an ex-prosecutor that there is no topic more near and dear to the hearts of prosecutors everywhere than conspiracy and aiding and abetting. Prosecutors are well-schooled in how to make conspiracy cases, which include some very prosecution- oriented evidentiary rules. The purpose of this is to teach the readers what the prosecutors most certainly already know.

Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.

Related:  

Copyright © 2025 Adnet Media. All Rights Reserved. XBIZ is a trademark of Adnet Media.
Reproduction in whole or in part in any form or medium without express written permission is prohibited.

More Articles

opinion

The SCREEN Test: How to Prepare for Federal Age Verification

For those who are counting, there are now 20 enacted state laws in the United States requiring age verification for viewing online adult content, plus numerous proposed laws in the works. This ongoing barrage has been exhausting for many in the adult industry — and it may be about to escalate in the form of a potential new AV law, this time at the federal level.

Corey D. Silverstein ·
opinion

How to Master Team Dynamics for Startup Success

Having the right team in place is everything. That’s true in most aspects of business, but doubly so when it comes to getting a startup off the ground and thriving. The right — or wrong — people can mean the difference between a successful venture and a failed dream.

Juicy Jay ·
opinion

Eight Steps to Fast-Track AI Site Approval for Processing

Artificial intelligence is a hot topic these days. AI technology is speeding up the way we do business across all industries and offers numerous benefits, from automating processes to increasing efficiency and scalability.

Cathy Beardsley ·
opinion

How to Secure High-Risk Transactions With Network Tokenization

Ensuring the security of data as it moves through digital channels is the foundation of safe transactions, and crucial for your success. If your business can’t secure transactions, you’re exposed to myriad processing traumas.

Jonathan Corona ·
profile

Lea Lexis On Challenging the Porn Status Quo

Lea Lexis doesn’t just aim to make movies — she wants to craft experiences. Bending the rules of what’s possible in moviemaking with the precision of a true auteur, the performer-turned-Brazzers producer has helped shape some of the industry’s most striking and boundary-pushing productions.

Jackie Backman ·
profile

WIA Profile: Reba Rocket

As chief operating officer and chief marketing officer of Takedown Piracy, long at the forefront of intellectual property protection in adult entertainment, Rocket is dedicated to safeguarding the livelihoods of content creators and producers while fostering a more ethical and sustainable industry.

Women In Adult ·
opinion

Protecting Content Ownership Rights When Using AI

In today’s digital age, content producers have more tools at their disposal than ever before. Among these tools, artificial intelligence (AI) content generation has emerged as a game changer, enabling creators to produce high-quality content quickly and efficiently.

Corey D. Silverstein ·
opinion

How Payment Orchestration Can Help Your Business

An emerging payment solution is making waves in the merchant world: the payment orchestration platform (POP). It’s quickly gaining traction as a powerful tool for managing online payments — but questions abound.

Cathy Beardsley ·
opinion

Fine-Tuning Refund and Cancellation Policies

For adult websites, managing refunds and cancellations isn’t just about customer service. It’s a crucial factor in maintaining compliance with the regulations of payment processors and payment networks such as Visa and Mastercard.

Jonathan Corona ·
profile

WIA Profile: Laurel Bencomo

Born in Cambridge, England but raised in Spain, Laurel Bencomo initially chose to study business at the University of Barcelona simply because it felt familiar — both of her parents are entrepreneurs. She went on to earn a master’s degree in sales and marketing management at the EADA Business School, while working in events for a group of restaurants in Barcelona.

Women In Adult ·
Show More