Wednesday, September 22, 2004

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IBill Toast?

I've heard rumblings that there might be a lawsuit from IBill against Chris Mallick (Epoch) and Ron Cadwell (CCBill) alleging they were involved directly in lobbying First Data corporation to take away IBills merchant account.

IBill was denied a motion in court today that IBill admits threatens the survivability of their credit card processing.

A couple of years ago, IBill was the biggest porn credit card processor. Now they're facing the end.

Hundreds of porn webmasters still process with IBill but will scramble to Epoch and CCBill.

Mark Tiarra writes on GFY: "If First Data didn't want to process their transactions anymore then the lift on the TRO will have them closing it off ASAP. Unless I-Bill is somehow able to negotiate something with them to keep it alive until the new bank is setup but I have to imagine that's not possible since they would have tried that before running to court."

PornGeneral writes: "Waiting till August 2004 to find another processor to replace one that is expiring in Sept 2004 just doesn't seem like a smart business move when dealing with millions."

Anthony writes: "In their own words from the motion for tro, within days they would be out of business."

Trading in IBill's parent company (IBD) stopped Monday. It is at $5:85.

Duke Skywalker writes: "This is like the scene in titanic where the band is still playing. Do we make like all is ok and dance and ignore the sinking ship or do we jump? See ya in the water."

Evan at Xpays writes:

I spoke with ibill and it is certainly a crisis and they are "moving their traffic to a new merchant account" right now. they need a little time to figure things out and to all of the people affected- we wish you a speedy recovery followed by speedy growth.

XPays has paid and always will pay out on all joins commenced regardless of our ability to collect from any third party. Our variety is part of our business model.

Mark Tiarra writes:

1) This is why cascading is so crucial. We've got three billers on Duke Dollars so flipping one down is no big deal and that's quite a relief although some of the eggs in the rebilling basket would stll get squooshed.

2) Yet another argument for getting your own merchant account as soon as you can and capturing the data internally so you can move your database if need be.

I don't see third party processing holding on forever. Is there any other business in the world that is dominated by third party processing? You start any brick and morter company and you are responsible for your own accounts. Part of the problem here has always been that the barrier to entry is so low that the number of unqualified people running business is too great. I don't mean this as an insult, but I'm trying to make the point that much of the difficulty with large volumes of chargebacks came not just from fraud but also from sites that had not nearly enough (or at least unique enough) content to be charging any fee for access. Also sites put together shoddily with no proper customer support... it's a mess.

Look, at the end of the day the customer base in this business isn't going anywhere. But the ability to deliver content to them and charge them will become restrictivly difficult enough such that only serious businesses are capable of doing so.

Mike33 writes: "It's not like multi-million dollar processors haven't gone under before for one reason or another. I can recall at least 5 in the past year and a half. Why didn't they move under a different name, get a new account, start all over again? Because it's not that easy."

Porn General writes:

Total Cash (mrq): 28.00K
Total Debt (mrq)²: 1.17M
Average Volume (3 month): 18,750
Shares Outstanding: 15.67M
Float: 11.40M %
Held by Insiders: 27.26% %
Held by Institutions: N/A

Unconfirmed just grabbed from the Key Statistics, but this is not promissing. Insiders don't hold a huge stack in the outcome of the company and the volume is garbage. Not to mention the all stock buy of iBill from Penthouse.

Did he know something was not right. Here is an insider transaction: 9-Aug-04 BAXTER, GENE 11,000 Planned Sale $70,9501

Ira In Fantasyland?

Porn Observer writes: "Ira needs to get off this bullsh-t theory that the Cal-Osha ruling is "a blatant attempt to crush the porn business". As he himself acknowledges, the porn industry is now a legitimate business, and legitimacy brings with it normal employee / employer requirements; tax withholding (yes, cast and crew are employees), work comp coverage, and workplace safety regulations. Sorry Ira, but this industry now knows what their parading around the country claiming their 'legitimacy' brings, and you may not like the results but welcome to the real world! Spend all the major production company's money you want (on legal fees), but it won't do any good. If you think courts will find the porn industry to be exempt from normal business regulations, you live in fantasy land."

David Aaron Clark Returns Fire On Ira Levine

David writes on AdultDVDtalk.com:

Ernest, a longer response coming, but I have no bitterness or personal animosity towards you. I consider you a talented and educated man, and in our own business dealings you have always treated me extraordinarily fairly. This is not about us as private individuals, however.

What seems to have you upset is that I'm merely speaking up with my opinions and beliefs; I have seen the, ah, "vigor" with which you have dragged personal issues and various other tools of the modern political debate into your responses to others who have questioned the positions you represent -- come now, discrediting an intelligent writer's opinion because she's a fem-dom and you're a male-dom? LOL I tend to think that everyone who defines themselves through a BDSM lifestyle tends to take their chosen roles a bit too seriously outside the bedroom/dungeon, whichever side of the fence they're settled on ...

My point is this: You and the power structure you are speaking for are NOT the only -- or even necessarily the prevailing -- opinion of those of us in the adult industry. You, AIM, AVN, LFP, et al, don't speak for me, you don't speak for Tony Tedeschi, and you certainly don't speak for Marissa Arroyo, Brooke Ashley, etc.

I find it extraordinarily amusing -- and not in a bitter way! -- that those in this industry who are decrying "government interference" in their "First Amendment rights" are the first to viciously attack and attempt to blackball those who dare to exercise their own First Amendment rights on this issue. And no, I'm not accusing you personally of attempting or threatening to blackball anyone -- that would be Devan, among others. You are much too canny to indulge in such tactics.

As well, my kudos for conducting your personal career in an exemplrary fashion -- it doesn't blunt my point, however, that you are unaware of the prevalent atmosphere on today's gonzo sets, having removed yourself to the genteel quarters of Adam & Eve condom-productions. Therefore, you are, one might assume inadvertantly, defending a bunch of producers and a culture that is not worth your defense.

As well, my point was not the quality of victuals provided by LFP at a supposedly "open" industry meeting to which the legitimate press was banned, and Tim exhorted us all from the podium to ignore the presence of outside the doors as if they were IRS agents, but that the heavy-handed corporate sponsorship of the meeting pretty much made obvious whose agendas were going to be favored.

Cry havoc and let loose the dogs of war

An attempt at an amicable resolution between some major porn players is turning into a nasty lawsuit.

Anarchy Bouncing Checks?

I got a call from Deep Throat. "Anarchy is run by Ari Ovadia (and his Israeli family), the guy who worked for David Sturman for about 15 years and then came to an acrimonious parting. They are bouncing checks all over town on everybody.

"Ari went into the office of Bill Linton of VIP last week to collect money owed to Anarchy. And I heard he threatened the VIP secretary that he better get paid or else."

So I made a call to somebody who does business with Anarchy. He said he'd just cashed checks for thousands of dollars from Anarchy.

"If Anarchy wants to deny they are bouncing checks," said my original source, "we'll put the bounced checks up on the Internet."

I emailed Anarchy for comment but got no reply.

I hear Anarchy is trying to pull something on Scura - a company that replicates DVDs.

A pornographer writes: "Ari was one of the most inept businessmen I have ever dealt with. He always needed a check to be deposited so he could clear other checks, product was done half-assed, never on time, had trouble getting our masters back, etc."

Let's Talk Solutions To Government Regulation

Ernest Greene aka Ira Levine posts to AdultDVDTalk.com:

I would like to think that some voluntary changes on the part of porn producers - increased use of condoms, fewer high-risk stunts like double-anals and creampies - would call off the regulatory dogs. However, since the dogs in question are motivated more by a desire to prohibit than regulate porn, I doubt they can be appeased. Still, it wouldn't hurt to try. More responsible behavior is desirable in itself.

A suggestion I read on another site that we could extricate ourselves from the jaws of Cal-OHSA by supporting legislation in the State Assembly with less restrictive language than the Cal-OHSA standard sounds somewhat appealing, but the chances of a bill we can live with actually being passed aren't that great.

The idea of a performers' union has been floated many times in many contexts, but here again, there are structural problems. Would a union-established standard of safety supersede one imposed by the state? A dubious prospect. And would a transient, fractious performer community really join and support such a union over an extended period of time? Unions derive their authority from solidarity. Would performers in need of money pass up work in order to sustain a union job-action? My own best guess is that the scabbing would begin around the end of the first month of such a union's existence, when people's rents start to come due.

And as to trying to disguise the locations at which porn is shot, this is nothing more than the kind of underground shooting I have long feared such regulations would produce, leading to the de facto de-legitimatizing of an industry we've worked long and hard to make and keep legal. It would also fail, as has been stated here, the first time a disgruntled performer or crew member went to the authorities.

Our best hope of blocking Cal-OHSA's blatant attempt to crush the porn business with onerous regulations lies with the courts, which have shown a willingness in the past to strike down other efforts to misapply state statutes in a similar manner, as in the Freeman case. I think the major production companies need to pursue injunctive relief from this abuse of authority immediately. I suspect that such a move is forthcoming.

Otherwise, we really are looking at dire consequences, not just for the companies, but for all the performers and other industry workers some folks here still seem to think the hostile officials who generated this crisis are trying to protect. No one from any government agency has the slightest interest in protecting any of us. The sooner we accept this fact and start resisting, the better the chances of preserving what freedoms we still have left. More responsible production practices may help. Legal proceedings may help. Getting the Bush administration and its shadow campaign against porn out of power would help a lot. But nothing anyone does is going to make this all go away anytime soon.

Why Don't Porners Want Condoms?

Joe writes: "Why are some folk in the porn biz so dead set against condoms? Are the vast majority of the anti-condom people are men?"

Duke says:

* It is not clear that most porn performers oppose the use of condoms.

* Some women are allergic to them.

* It takes longer to do a scene with condoms and men have a hard time maintaining erections. Still, I am not sure that more male porn actors are opposed to condoms than female.

* Some only work with their partner, so they see no need for condoms.

IBill On Brink Of Collapse

The news broke on this JBM thread.

Brad Shaw: This sounds scary.

AVN.com reports:

NEW YORK - Internet Billing Company (iBill) has asked a New York court to force First Data Bank to live up to what iBill calls a prior agreement: namely, that First Data, which had been iBill's processing bank, would help iBill transition to another bank after a contract between iBill and First Data expired earlier this month.

"iBill brings this action to save its business from immediate collapse," according to a filing with the New York State Supreme Court. iBill also said in the filing that if First Data's move is allowed to stand, a number of iBill clients' businesses could be jeopardized if not ruined.

An Uncomfortable Conversation

I love to probe women I am interested in for the deepest darkest chapters in their sexual diaries. I interview them as though they are porn stars.

Then, I can never get the horrific images out of my mind, and they taunt me throughout our relationship. I never want to know about my woman being with any other man aside from me, particularly not another man who's bigger than me.

This one woman I loved in the past said she'd had threesomes. Her ex-husband pushed her into it. She says she hated it. She didn't want to tell me about it but I wheedled it out of her.

The three would sleep in the same bed all night.

I'm haunted by these images. I feel horny, strange, voyeuristic, uncomfortable, sadistic.

Her husband encouraged her to have affairs. It made him feel proud that she was so attractive.

Her husband's older brother had a divorce. Hubby told his wife to go in and make love to his brother to buck him up. He's had a divorce. He's needy. She did it. She felt terrible afterwards.

Big brother later sent them a postcard. "Thank you for meeting all of my needs."

I don't ask these questions anymore, or try not to, of women I date.

A Chat With A Porn Director

XXX: "Everyone's concerned that this marks the beginning of something with the porn industry, or are these fines just a stand alone thing? We'll have to wait and see. The government works in strange ways.

"Many porn girls have their checks written to a DBA (Doing Business As, a sole proprietorship) so they can avoid payroll taxes and get their full check. Porn is about instant gratification. They want the maximum amount of money today."

Rob Spallone calls up yelling about Ira Levine. "He's a Sharon Mitchell fan. Ira's the bald guy? Why doesn't he put his pinstripe suit on and get a plastic tommygun? He brought the Cal-OHSA people in and now he wants to fight them? Is that what I am reading?"

I don't know anything about Ira or Sharon bringing Cal-OHSA in. A porn actor made a complaint and Cal-OHSA investigated.

Rob says that anyone who donates to AIM is a "moron. I hope they do make it all-condom and then there won't be any testing and we'll get rid of these morons. These are the ones who went on TV, went to the press, got on the news. Now what are you doing?"

Ira Levine, chair of AIM's board of directors, emails:

Like most sane people, I rarely pay any attention to anything Rob Spallone has to say, but there is a particular lie he keeps repeating, most recently on your site, that needs debunking.

Neither Sharon Mitchell, myself, AIM nor anyone associated with AIM in any capacity had anything whatsoever to do with bringing the porn industry Cal-OHSA's attention. AIM's official policy has consistently favored voluntary safety measures over government intrusion in the production process. That hasn't changed. Just for the record.

Overkill Regulation?

For over a decade, California's porn industry has had a free ride from government intervention. Now the times are changing and we may be in be regulatory overkill.

As I understand California's EDD regulations, porn stars are not independent contractors. Therefore, their workplace safety can be regulated by Cal-OHSA and they are entitled workmen's comp. Say a porn star gets lockjaw from giving too many blowjobs, or her ass blows out from a double anal scene, she can march on down to EDD and get compensated for her work-induced injuries.

Here are some examples. An independent contractor (IC, who registers with a 1099 form) will wash your windows for $100 tomorrow. Or swab your knob for $300. The IC brings her own tools to the workplace and does the job. Then she comes to me and asks if she did it right. I say yes. She writes me an invoice and I pay her $100 cash. She's an IC.

If I hire a girl to swab my knob for $300 and I ask her to arrive at 2 p.m. tomorrow. I've got all the tools and supplies in my garage. You show up at 2 p.m. I give you the tools. I tell you how to swab my knob. You need to scrape here. Apply suction there.

You are now an employee.

Porn talent are told when to be on a set. Where to be. What to wear or they are provided outfits. They are told what to do throughout a scene. They are told who they are going to work with. There's a make-up artist that puts their make-up on. They are directed as an employee is directed.

I found this related Web post:

As a general rule, one who hires an "independent contractor" is not liable for the acts of the independent contractor. This principle rests on "the want of control and authority of the employer over the work, and the consequent apparent harshness of the rule which would hold one responsible for the manner of conducting an enterprise of which he wants the authority to direct the operations." [Van Arsdale v. Hollinger (1968) 68 Cal.2d 245, 250, 66 Cal.Rptr. 20, 23; see also McDonald v. Shell Oil Co. (1955) 44 Cal.2d 785, 788-790, 285 P.2d 902, 904]

The factors to be considered to be an independent contractor include:

-- the hiring party's right to control the manner and means by which the product is accomplished (the most important factor);

-- the skill required;

-- the source of the instrumentalities and tools;

-- the location of the work;

-- the duration of the relationship between the parties;

-- whether the hiring party has the right to assign additional projects to the hired party;

-- the extent of the hired party's discretion over when and how long to work;

-- the method of payment;

-- the hired party's role in hiring and paying assistants;

-- whether the work is part of the regular business of the hiring party;

-- whether the hiring party is in business;

-- the provision of employee benefits; and

-- the tax treatment of the hired party. [Community for Creative Non-Violence v. Reid (1989) 490 U.S. 730, 740-741, 109 S.Ct. 2166, 2178]

Weighing required:
"(A)ll of the incidents of the relationship must be assessed and weighed with no one factor being decisive." [Nationwide Mut. Ins. Co. v. Darden (1992) 503 U.S. 318, 323, 112 S.Ct. 1344, 1349]

Economic realities test:
Other courts focus on whether the "independent contractor" is someone who, as a matter of economic reality, is dependent upon the business to which he or she renders service. Under this test, important factors are how the work relationship may be terminated and whether the worker receives yearly leave. [Lilley v. BTM Corp. (6th Cir. 1992) 958 F.2d 746, 750; S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341, 256 Cal.Rptr. 543]

Hybrid tests:
Still other courts consider the "economic realities" of the work relationship as an important factor in the calculus, but still focus primarily on the employer's control over the worker's performance. [Schwieger v. Farm Bureau Ins. Co. of Nebraska (8th Cir. 2000) 207 F.3d 480, 484; Oestman v. National Farmers Union Ins. Co. (10th Cir. 1992) 958 F.2d 303, 305; Mangram v. General Motors Corp. (4th Cir. 1997) 108 F.3d 61, 62]

You really need to discuss the specifics of your situation with an employment law attorney.

I checked my perceptions on these matters with an accountant.

Regarding underground shoots, the state can ask to look at master tapes to make sure that condoms were used.

Who's David Aaron Clark?

I got a call. "Is David Clark that crazy asian-loving guy from San Francisco?"

Yes.

"God dang. He's a lot more of a realist than I thought.

"I've met him once or twice. He was with an asian girl. I thought the guy was a nut job. A San Francisco-style nut job. But I read what he's writing about Ira, and David is clearly liberal, I think he's probably a pretty good guy.

"It's amazing to me. The image I have of him would never have been this. I would've thought he was a balls-to-the-wall anything-flies kinda guy."

Nina Hartley Speaks Out On Cal-OHSA

Nina writes on Nina.com:

I believe Ernest is very clear in his thinking, reasoning and vision. We don't know how it will play out in the end, but this is the biggest thing to hit the business since the Freeman decision in '88. Ernest has never been about what's PC in porn, only about what is the best way to keep performets safe. I know he'll take a lot of flak (on top of what's been dished out already) for his position, but it comes from his gut and is his opinion alone. You can see why I admire him so much!

Nina on the madness of the anti-porn feminist:

Eros IS powerful, unleashing potent, passionate, unsettling feelings. My sex life improved considerably when I embraced the notion of consensual power exchange, as well as to accept that I liked all kinds of fantasies and behavior that involved power and the loss/gain/use of it. As long as it's negotiated beforehand, power is a very enjoyable energy with which to play.

Paul Fishbein Profile

The November issue of Philadelphia magazine will run a feature-length profile of Paul Fishbein, who comes from Philadelphia. Though I'm not expecting any bombshells, I do expect a quality article by Richard Rys.

Philadelphia tried to do this same article two years ago with a freelancer out of San Diego, but they were disappointed by what he turned in, and trashed it.

David Aaron Clark vs. Ira Levine

Is there a history of animosity between these two? They both came out of the bondage world and they have many similarities in personality (both smart, articulate, witty, introspective, and excellent writers).

Ira replies:

I never really encountered him via my bondage-related activities. I first got to know him when I was editing Asian Fever for LFP and he was a regular contributor to the magazine. I thought he was an excellent writer and enjoyed working with him until the magazine ceased publication. We've never had any kind of unpleasant face-to-face encounter, other than when I had to remind him at the meeting he describes that he was running over his alotted microphone time.

I'm genuinely at a loss to understand the level of hostility I seem to have inspired in him. It's all the more unfortunate because we clearly respect each other's intelligence and share many of the same long-term goals for the industry. I'm surprised and disappointed that our differences, which are fundamentally tactical, have created such bitterness from David's side. I do not share that bitterness.

How Do Porn Star Escorts Affect The Health And Dignity Of The Porn Industry?

Ira Levine responds:

Escort work is generally stringently all-condom, so I doubt it has much health impact on porn. I'm unaware of any information to the contrary.

What performers do outside the industry is not my direct concern and I'll have no comment on it.

In the 1986 Freeman vs. CA decision by the California Supreme Court, it was ruled that recruiting actors for porn shoots was not pandering, and that porn actors were actors rather than prostitutes.

This has been a big industry talking point eversince. Untold numbers of porn girls have told me that they do not escort and they seem to look down on those who do. Sex workers have just as many judgments about their fellow sex workers as outsiders have judgments of sex workers.

With the rise of the Internet, however, came a rise of porn stars escorting publicly. You can read reviews of their work on places such as TheEroticReview.com.

I have to believe this affects the health of the industry (porn actors having sex with civilians for money, many of whom want it bareback) as well as the dignity of the industry. It makes it easier for outsiders to call porn stars "whores."

It's often been said that porn stars are "whores without shame."

Dan writes: "In this day and age of Gonzo porn, I don't see the distinction between "porn stars" and "whores". Tell me that you consider the girls of pissmops.com or analcreampies.com "actresses". The only difference between whores and porn stars, is that the whores are getting paid more per "scene"."

Ira Levine Responds To David Aaron Clark On AdultDVDTalk

Ira and David both come out of the bondage world. Both guys are into B-S-M. I wonder if there is a personal animosity animating their intellectual differences?

Ira Levine aka Ernest Greene writes:

Quite the lengthy bill of indictment you fire off at me. Always have enjoyed your writing, even when, as in this case, you don't know what you're talking about. I don't have all day to exchange brick-bats with you, as I have other, actual duties, some of which are purely commercial, others of which involve my duties at AIM, where I have been working diligently to protect the health of performers since the I helped create the organization in1997. Moreover, I don't want to see this otherwise intelligent discussion degenerate into the usual ad hominem attacks that too often pass for debate whenever these issues arise.

I do not, however, intend to let some of your more egregiously false charges stand unanswered. Let's go down the list.

I think many of the company guys in whose service you think I act would be quite amused by your depiction of me as a callous capitalist and opponent of labor rights. One of the reasons I've never held a staff job at any production company, and I have been told this by more than one exec, is that I am viewed as too much in the camp of the performers. In a long battle, to which you were not a party, at the beginning of AIM, several major companies and virtually all talent agencies tried to pressure us not to provide new performers with specific information about their own safety interests and their right to protect themselves. If you really wonder where my loyalties lie, you might ask some of the many performers who have worked for me how they feel they were treated. For the record, unlike yourself, I have never shot double-anals, creampies or other stunts I consider high-risk. My insistence that performers always be allowed the use of condoms has cost me literally hundreds of thousands of dollars in lost directing employment, but I have consistently refused for a decade to shoot for any company that has a no-condom policy. I still do.

I understand that porn, like other industries, resists attempts by workers to organize themselves. I, on the other hand, believe that performers can and should organize around the issues that concern their welfare. In fact, back in 1993, I was one of the seven founding directors of the Adult Performers Association, the first formal attempt to organize performers in the face of the first HIV scare to hit the industry. I was targeted with every kind of harassment from companies and agents for my participation in this effort. I was even the object of a rather comical threat of bodily harm from some old-timers, all for daring to advocate that performers have a say in how they were treated. For what it's worth, which isn't much in the current environment, I still think a broad-based performer's guild would be an excellent idea and a good vehicle for both education and advocacy regarding performers rights.

To answer your most damaging and least founded charge, much has changed for the better since 1993, and particularly since 1997. I believe that AIM represents a tremendous improvement over the informal, haphazard ELISA testing that was the industry's only line of defense against HIV before the events of 1997. Not only were we able to obtain quick and inexpensive access to the PCR-DNA test for all who wanted it, we successfully lobbied producers to accept this test as an industry standard and to require it from all talent. In an industry as fractious as this one, that is no small achievement.

And the results:

So far, in that seven years, we've detected a number of HIV cases in incoming performers who we've kept out of the business, detected one or two isolated cases that were never transmitted, and limited the ONE outbreak that did, finally, occur after seven years and 80,000 negative tests, to three transmissions. Not a perfect record, but indisputably a much better one than the industry could have claimed by now if AIM hadn't been there. I m sorry if you see that as unimpressive. Given the number of sex-acts performed in that time, including high-risk scenes you shot, I'd say we've done pretty well.

Obviously, every single instance of HIV infection matters. But it would be reasonable to bear in mind that the average transmission rate throughout LA County for that same period has hovered around 1500 new cases per year. No matter what regulations are instituted, porn can never be made risk-free for as long as HIV exists in the general population. AIM s mission has always been harm reduction, and have not a single doubt that we have reduced the harm to performers from HIV and other STDs.

In my experience, it has been underemployed directors willing to do anything to land an assignment who have endangered performers by shooting needlessly high-risk behaviors in order to please their low-end employers.

Gee, Dave, I feel bad for you that most of the audience had drifted at the meeting you mention had drifted off by the time you wound up your lengthy, confessional remarks, and I'm sorry you found the refreshments sub-par, but many others with differing opinions had already spoken before you, including Seymore Butts who took the industry to task in even stronger language than yours and boldly announced his intention to take his productions all-condom, for which those of us on the panel congratulated him warmly. That some other participants continue to shoot high-risk behavior is unfortunate. I oppose this personally. AIM opposes it officially. But neither favors government intervention as a remedy, not because we oppose the goal, but rather the means. I don't believe any governmental agency will be effective in preventing the risks we both agree are unacceptable. Instead, I believe any government agency would demolish the existing safeguards without putting anything workable in their place. Because state law forbids employers to require HIV testing for any occupation, a government standard would eventually have to eliminate testing as part of the regimen, relying only on barrier-protection instead. I don't think most performers would be comfortable working with other performers whose HIV status is unknown, barriers or no, and justifiably not.

You go on to fire a couple of very cheap shots at me, including the suggestion that I have no personal stake in the safety of performers, including Nina. Nina and I are both long-time advocates of condom use in porn and we agree 100% that attempts to make it mandatory will fail. Nina makes her own choices about the use of condoms for each scene she does, using them with people she doesn't know and not with longtime friends of whose responsible behavior she feels assured. I do have a very direct interest in Nina's well-being, though I am not a performer myself, because a) she's my wife and I love her and b) because she is also my sex partner and anything that puts her at risk also puts me at risk. I have been the partner of many other performers over the years and I can appreciate the dangers they face from a very personal perspective. To suggest otherwise is both factually incorrect and ugly in its implications.

I'm not going to debate with you over the definition of a contractor under California law. I've already stated my opinion of this, but I m not a lawyer and my opinion is no better or worse than your own.

As far as you know about when I last directed a boy-girl hardcore picture evidently isn't very far. In the past three years I have shot 15 hardcore titles for Adam&Eve and continue to shoot hardcore titles to this day. You may have gotten the idea that I don't shoot BG hardcore during the long period between 1993 and 1997 during which I was essentially black-listed for my outspoken advocacy of condom use and my already-stated refusal to work for companies that forbid it. Fortunately, PHE isn't one of those companies. I work all the time on hardcore projects, but the vile working conditions you describe don't exist on my sets because I won't accept work from companies that don't give me enough money, time or freedom to do the work right and treat the people well.

For the record, condoms are used in every picture I shoot and they remain extremely commercial. I completely reject the contention that condom use would make porn unprofitable. That is a red herring. I said at the very meeting where you accuse me of flacking for irresponsible producers that I consider condom use nothing more than a creative challenge for picture makers that can be easily integrated into successful productions with a bit of imagination. I've shot, and sold successfully, more condom footage than any director in the history of this medium, starting with Nina's first Guide shoot in 1992.

My position on safer sex, and AIM's as well, may not fall in line with PC standards advocated by some organizations, but we feel that porn work is done under unique circumstances that require very specifically tailored safety standards, as opposed to the one-size-fits-all approach to which government agencies in particular are naturally inclined. Call that a nuanced position if you like, but I believe it reflects the medical realities of our unusual situation. Here again, your attempt to create a false conflict between my wife and myself is both low and misinformed. If you want to know Nina's views on this subject, I'd suggest you go to her site and ask her yourself. You might find it educational.

As for my own views, realpolitik is not my concern. Real, workable protections, as opposed to mad, unenforceable schemes, are. I've never cared who likes me or who doesn't in this business. I have always cared for what I regard both as its collective best interest and the individual best interests of its members. That I do not ignore the political dimensions of these questions reflects that concern.

Cost-effectiveness is a concern because measures that make porn impossible to create will be flouted, period. The bottom line is never more important than human life to me, but I recognize that protecting human life in this industry requires the support of producers. It s a fool s dream to believe that any government agency or performer's organization can effectively alter the practices of this industry against overwhelming producer opposition. My concern is with the unintended consequences of such an attempt. I'm genuinely disgusted at the way you dismiss my hundreds of hours of uncompensated effort through AIM, through my writing and through my unself-aggrandizing lobbying work to make this industry a safer and more humane place. Until last spring, I don't remember seeing you or hearing your dulcet voice at a single meeting concerning any of the issues now under discussion. If anyone's record here needs defending, it wouldn't be mine.

And yes, there is an issue of freedom of expression involved here. I'm not attempting to paint Cal-OHSA as doing something it is not. The standards they seek to impose are completely impracticable, and they have been told as much directly by myself and others. In response, public health officials involved in trying to impose these regulations have told myself and others flat-out that they couldn't care less if their efforts result in the destruction of the industry. How is that to be interpreted if not as a direct threat to our continued operation in all forms?

For my own part, as a director who refuses to shoot high-risk behavior, safer sex in porn wouldn't hurt me a bit. In fact, it might help me get more work. I'm all for it. And my history as an advocate for it is well-known to seemingly everyone but you. I've always been an activist in this area and will be for as long as I'm associated with this business. I simply see Cal-OHSA's hostile intervention as the latest in a series of outside threats to the safety net I've worked so hard so long with so many others to put in place. Can't remember the last time you volunteered to work a day at the AIM clinic. Maybe I missed something.

And no, I don't mind you addressing me by my legal name. On these issues, or any others in which I speak in my capacity as chairman of AIM's board of directors, I always use my real name. I stand behind my views under any name, and I'm legally and publicly on record regarding all AIM-related matters, since I serve on the board as Ira Levine. I also speak to mainstream media under my own name. I'm not ashamed of what I do, either in porn or on porn's behalf. I've also outed myself and joked about my so-called pseudonym in many public situations. I have nothing to be ashamed of in my politics or in my labors, other than a few sub-standard titles I wish I hadn't made.

I hope this addresses your questions, though I doubt it will change your opinions, which I suspect are more personal than political in any case. I don't know how you've come to dislike me with such rancor, as I've generally been helpful and supportive to your career where and when I could.

I really think this is your problem, and I've spent quite enough time dealing with it.

Eerie Silence From Company Owners

I suspect they are dumbfounded by the Cal-OHSA fines.

I have not been able to find any responses from video company owners.

If producers treat porn stars as employees, it will increase their costs by 10% for workers compensation and 15% for taxes (by making them filling out W4 forms).

Fined for False Charges for Web Porn

From New York Lawyer via Adultfyi:

Two companies and their principals committed unfair trade practices by billing unsuspecting telephone subscribers for access to pornographic Web sites that they never used, a federal judge has ruled.

Southern District Judge Lewis A. Kaplan ordered two Bahamian corporations and two executives who he said are "at large" to pay the Federal Trade Commission almost $18 million for the false billings and for making false or deceptive statements to telephone subscribers who called to complain about charges wrongly billed to them.

"In all the circumstances . . . " Judge Kaplan said, "the Court finds that defendants represented that line subscribers were legally obligated to pay these charges irrespective of whether they used or authorized use of the services of defendants' web sites."

The facts confronting the judge in Federal Trade Commission v. Verity International Ltd., 00 Civ. 7422, concerned the use of a billing method designed for customers who visited pornography sites but did not want to pay with their credit cards. The defendants were Verity International Ltd. and Automatic Communications Ltd., and the founders and former principals of both companies, Robert Green and Marilyn Shein. They have since become minority owners.

Judge Kaplan said they offered pornography Web site operators a billing service that used legitimate phone companies to charge customers for access "by including the charges on the telephone bills for the telephone lines over which customers accessed the Internet and describing the charges as being for telephone calls to Madagascar."

More info

David Aaron Clark Takes Fight To Ira Levine On Cal-OHSA

Director David Aaron Clark writes on AdultDVDTalk.com:

Ira, all your strident rhetoric doesn't really mask that your concern here seems strictly capitalistic -- i.e., saving the poor, unfortunate, practically penniless company owners from having to face the terribly inconvenient fact that the penises, vaginas and anuses that they make their fortunes off of belong to human beings who deserve the same rights of protection from unscrupulous employers as any other American does ... any student of U.S. history, which there are woefully few of on this board or in fact in society as a whole these days, knows that the labor movement was not not born in a vacuum of benevolant and humane employer practices and policies. Nor was it welcomed by such employers. In fact, they tended to beat and murder labor activists.

You point out how you've been supposedly championing the health and welfare of performers since '92 -- well, considering where the standards and practices of this industry has gone in that time, I'd say you weren't particularly effective. How many HIV outbreaks have there been in that time? Where was your public doomsaying of the dire consequences of our actions during those times? Since the, how many people have had their lives changed forever by the callous standards and practices of the industry that participating in pays the bills for the both of us? A dozen? At what does it start to matter?

At the farce of an industry meeting you helped chair, all the usual suspects were put on the stage to masquerade as "responsible industry spokemen" -- most of whom continue to shoot extremely high-risk sex to this very day, without changing a damn thing about the way they do business, and others of whom threatened to take their business to an unregulated foreign country if they were forced to in any way behave as responsible businesspeople.

Anybody with a dissenting opinion, such as myself, was pushed to the back of the speaker's line until the people who most needed to be called on the carpet had wandered off to network while they enjoyed the fine steam-table chicken wings and pepsis provided by LFP -- an extraordinarily wealthy corporation for which it might serve you well to be a long-time independent contractor, since to my knowledge you are not a performer on the front lines exchanging suspect bodily fluids daily and having their mucous membranes abused, all in direct contempt of even the mildest standards of safer sex suggested by responsible health professionals such as your wife.

And by the way, it's one thing to be an independent contractor and actually HAVE a contract which guarantees you more than a one-time check for your services, but the fact is that performers (and most directors) don't even HAVE the luxury of a signed contract with the companies they toil for on a regular basis that would guarantee them ANYTHING at all, how ironic is it to insist that the state label such workers "independent contractors" .... Does the guy paving your patio lift a finger until a contract is signed? Does an author deliver a manuscript until a contract is signed?

When was the last time you were on the front lines, and directed a video with hardcore, penetrative & unprotected sex? As far as I know, it would be the Tristan Taomorino video. Which was hardly the same situation as dealing with an uneducated 18-year-old's confusion over how the authority figures who hired her to have her ass ripped open didn't seem to care that the herpes/anal warts/hepatitis she contracted on their set was just the price of doing business -- certainly worth it for the company who will profit through endless comps and website usage of such a scene without having to take any responsibility for the performers they use and toss aside like come-stained toilet paper carelessly left in the corner of a "set" without even a proper bathroom, but perhaps not so for the young lady who's life has been changed for the princely sum of a single month's rent --- or less, because "it's a gonzo scene, and we'll have you in and out in two hours."

You claim to [be] the authority on what's best for all of us -- even if what you claim flies in the face of every professional health organization's recommendations. What I find most troubling is that unlike many of those on your side of this argument, you are a highly educated man who certainly knows better -- I know that Nina does! You can argue that you are practicing some version of real politik, but I have trouble seeing it that way.

Yes, it's more cost-effective to do business by locking up children in a windowless sweat shop to sew shirts for fourteen hours at a pop, and call them "independent contractors." Yes, it's more cost-effective to deny porn actors any sort of real shot at safety in the workplace.

Too bad -- the bottom line can never be more important than human lives. If safe-sex videos -- or God forbid, softcore! -- isn't as lucrative as video companies would like, perhaps they can make a deal with the sort of people who stage bumfight videos, or the "Faces of Death" folk. I don't see where the defending the right to pander to people's basest instincts at the cost of human lives is what any reasonable person could honestly call the Good Fight. This simply is not a freedom of speech issue. It's not about portraying interracial sex, or "alternative lifestyles," it's about exploiting the ignorant and/or the poor. Why are prostitute's unions a good idea but a porn actor's guild not?

Since you present yourself as an authority figure and spokesperson for this business, perhaps if you had used that status and taken a more activist and controversial stance in the last few years, and as passionately and stridently stumped for performer's rights within the industry, you would not have to be trying so hard to paint CAL-OHSA as some sort of evil, anti-free speech, anti-let-us-make-our-money-however-we-see-fit-cuz-that's-the-AMERICAN-WAY Conspiracy of Evil.

Would the world end tomorrow if stud A was no longer allowed to ejaculate into slut B's anus? Or would Brooke Ashley not be dying penniless, sick and miserable in Hawaii, the object of merry contempt and physical threats by the very producers who cast a performer with a faked HIV test for the anal gangbang video which they are still enjoying the profits from? Those producers and that performer continue to enjoy the good will of the industry. Why does that not move you to activism as the threat of OHSA intervention has?

And I certainly hope you don't mind me addressing you by your "legal" name -- or don't you stand behind your statements? Me, I've never seen the need to do my work here in the industry under a psuedonym -- though I certainly understand why it's a wise decision for performers whose images are widely deseminated to the public, I've never quite understood how producers and directors who supposedly see nothing wrong with what they do need to have secret identities, unless they're not comfortable with taking responsibility for their work and the decisions that accompany them.

Bill Margold On Ira Levine

Bill prefers Porn: Myths for the Twentieth Century to Stoller's other book on the industry Coming Attractions: The Making of an X-Rated Video, which was finished after Stoller's death by pornographer Ira Levine, better known in the industry as S&M specialist Ernest Greene.

From a 1996 interview with Margold:

"Ira and I clashed over the AIDS scare. Ira, with all his piety, began yowling that everyone was about to die and that the sky was falling. He became the proverbial Chicken Little.

"I told him that this is an industry based on walking on a tightrope with razor blades underneath. Don't try to put a safety net under there.

"He questioned how I could take my kids cavalierly. They take themselves cavalierly. I am not going to protect them by tying them up in fear. Fear is the great killer not fat. I am not going to live in mortal fear of AIDS."

Stoller: "Like Ira, Bill is fired up by rebellion; protected by a mordant sense of humor; blessed with keen intelligence; amused by his own wry exhibitionism - of the mind, not of the flesh; seduced into eternal wariness; energized by hyperbole; both consoled and battered by too much skill in avoiding long-lasting love; and on the razor's edge of self-destructiveness: f-ck it, f-ck them, f-ck you, f-ck me.

"But he and Ira handle the politics of culture and of soul differently. Bill grandly denies caring about what happens to anyone in the universe except "the kids," the performers he protects. Ira is unendingly concerned with good and evil. They also express sharply different aesthetic sensibilities of how porn should look and feel: Bill likes junior horse-around; Ira would create erotic art if he were funded." (Coming Attractions, p. 15)

Google cracking down?

Piksal Design writes on GFY:

Hello, Thank you for advertising with Google AdWords. After reviewing your account, I have found that one or more of your ads or keywords does not meet our guidelines. The results are outlined in the report below.

Campaign: 'Campaign #5,' Ad Group: 'GlamourHotties'

AD TEXT: Hot Glamour Models The Hottest Source for the Sexiest Babes Online! www.glamourhotties.com Ad Status: Suspended - Pending Revision Ad Issue(s): Site Disclaimer Needed

SUGGESTIONS: -> Website: Please post a disclaimer on your website that informs users that the featured individuals are 18 years of age or older. POLICY DEFINITIONS: Site Disclaimer Needed: Your keywords and/or ad text may not use suggestive language about minors without a disclaimer clearly posted on your website.

It's good to know they actually care about this.

Ira Levine Declares Cal-OHSA Regulation 'A Declaration Of War'

Ira Levine writes on AdultDVDTalk, where these issues are getting thrashed out most intelligently:

Those who think there is a technical fix of some kind that would allow us to live with OHSA's instant porn standard just aren't getting the intent of these so-called regulations. They're intended to put us out of business, and if we capitulate to the degree of trying to work within them in any sense, the agencies involved will simply come up with new ones that are even worse, if such a thing is possible. And BTW, there is no cost-effective way to digitally eliminate obvious lulus like goggles and dental dams and gloves.

I'm all for condoms and always have been. They're a minor challenge to a good cameraman and a good editor. It's the other stuff that's clearly meant to kill the whole operation. And as to working out some kind of compromise on the standards, Cal-OHSA made it quite clear at the hearing that they have no interest in negotiating degrees of risk with the likes of us.

It's a declaration of war, folks, and we better start shooting back mighty soon. As it is, we're standing by to be overrun.

Legislation Coming

Gene Ross writes on Adultfyi:

Legislation is coming. It's not coming today but by the early part of next year, the adult industry will be facing it's stiffest test yet. Pardon the pun. In the wake of the recent Cal/OHSA announcements, I spoke to state lobbyist Mike Ross to get some insight as to what the adult business might expect in the months to come. Ross can't say for sure what the specifics are right now as far as bills.

"But I've been spoken to," he says. "It's going to be some time in the next six months. Apparently they've taken a position and I think it's a really good position. It's a smart position that argues the same concept that the Leslie Bill argues, that there should be some more responsibility and more protection. And that protection should be afforded to people who are working within the industry and that management has to pay attention to that. The bottom line is I think it's a good thing."

Shane Returns to Action with Shane.TV from Phoenix Releasing

AVN.com reports:

Best known as the creator of the popular series Shane's World, Shane [the ex-girlfriend of Seymore Butts] felt it was the perfect time for her to get back to doing what she does best.

Jesus Christ I Can't Stop Laughing

KRL writes on GFY: "The Catholic Church in Tucson AZ went belly up today. This has to be the funniest CH 11 letter ever written."

Our Diocese submits the reorganization case and the reorganization plan with the belief that this represents the best opportunity for healing and for the just and fair compensation of those who suffered sexual abuse by workers for the Church in our Diocese -- those who are currently known and those who have not yet made the decision to come forward.

Ira Levine Joins AdultDVDTalk, Challenges David Aaron Clark

Nobody has been more thoughtful about the Cal-OHSA fines situation than Ernest Greene aka Ira Levine who posted on AdultDVDTalk:

At the legislative investigative hearing, the Cal-OHSA rep made very clear that practices such as non-barrier-protected oral sex and external ejaculations on bare skin that the industry considers fairly low risk don't meet the BBP standard and would be probhibited under OHSA rules if OHSA's authority in the X-rated workplace is established. There appears little give in this matter from their side and no willingness to negotiate with any of us. Since I believe their real agenda is prohibition, they are likely to stand firm on the most restrictive interpretation of the regs possible. It will be very difficult to strike a deal with these devils. Our best hope is that pressure from above, via some friendly faces in the State Assembly may soften their stance somewhat. Otherwise, the whole thing will have to be tested in court, with unpredictable results.

And to DAC, who has lately been lobbing pot-shots in my general direction. First, a point of clarification. I am not now and have never been an employee of LFP. I am an independent contractor there through my corporation and edit Taboo as a free-lancer. In no way do my opinions represent those of LFP, or vice-versa. Larry Flynt and I share many areas of agreement on this whole subject, but his ideas are his and mine are mine. DAC may not like what I have to say, but he's out of line in implying that I shill for anybody.

If he had been in this business a bit longer and understood something of the long history behind my involvement in the evolution of STD-control measures in this industry, I would like to think he would be less inclined to impute sinister motives to my statements and actions since becoming chairman of AIM's board of directors. I am now and have always been dedicated to what I perceive to be the best interests of performers. How those best interests are proprerly secured is a matter upon which reasonable people may disagree, but I reject utterly any suggestion of hidden agendas or political machinations on my part to the advantage of producers and detriment of performers.

My question to you, DAC, is just exactly what is it that I've said that you consider false or irresponsible. If you're going to slam me by both my working and legal names, you can at least cite some examples of what you consider to be false and/or inapprorpriate statements I have made.

Ira Levine On Cal-OHSA Fines

Ira Levine aka Ernest Greene emails:

I rarely post to industry-oriented sites, as Nina [Hartley] and I have our own from which to propound our views and, frankly, I prefer playing to a friendly audience. However, since my name(s) seem to keep coming up here in conjunction with the current Cal-OHSA controversy, and since you¹ve chosen to weigh in on that controversy yourself, I thought I should take a minute to address some of the interesting issues you raise. I'm a bit surprised to find myself in agreement with some of what you have to say, but I take strong exception to other opinions you express concerning this very important matter and can't let them pass without comment.

From the top then:

I agree that the porn business has been under official scrutiny over both health concerns and labor practices for some time. For the record, I warned a large meeting of major producers back in 1993 that such scrutiny might result in exactly the situation we face now - heavy-handed intervention by hostile regulatory authorities. This does not mean that I felt then or feel now that such intervention was justified. I do think producers could and should have done more to forestall it.

I do not believe that most scene-rate porn performers do, in fact, qualify as employees under California law, for reasons stated in the post from our Web site you quote verbatim below (and I do appreciate you allowing me my say unedited).

A court test of this question is now virtually inevitable, and I would hesitate to predict the result, but a possibility you do not consider is that of a ruling denying non-contract performers employee status and disallowing their classification as such by those companies that currently payroll single-instance players as employees. This would not only render Cal-OHSA's jurisdictional claim null and void in all but those situations involving contract performers, but also, by implication, affirm the producers' right to compensate performers as 1099 contractors. While the outcome of any litigation is risky to predict, and there has been a general tendency in labor law to extend employee protections to greater numbers of workers, nothing about this case will be typical. Cal-OHSA is attempting to make law in an area where none has previously existed, and may or may not prove able to make their regulations stick.

You are absolutely correct about the existing prohibitions that prevent employers from requiring medical tests for employees. And, as I pointed out earlier, the ACLU has already expressed its determination to oppose any attempt to exempt this industry from those prohibitions. This is a particularly ominous aspect of the current controversy. Cal-OHSA's imposed standards do in fact call for STD testing, and if those provisions are struck down, just as you suggest, it may become illegal for producers to request STD test-results from performers. While performers might still request them from one another informally, and refuse to work with other performers who cannot or will not provide them, there would no longer exist any formal mechanism for monitoring the STD status of performers as individuals or as a group.

This situation would make work in porn more dangerous for everyone. Realistically, very few performers would knowingly risk working with someone they knew to be HIV+, even with all barrier protections mandated by Cal-OHSA in use, and for good reason. Though I categorically reject the propaganda of abstinence-only proponents to the effect that barrier methods are useless for protection against HIV transmission, they are not fool-proof. In the kind of prolonged and complex sexual encounters involved in X-rated production, the chances of catastrophic failure are not insignificant.

One of the reasons we at AIM have so vigorously opposed government-administered safer-sex regulation in the industry is the danger it poses to the voluntary testing regimen that has contributed so successfully to maintaining the safety of the talent community over the past seven years. Making barriers mandatory while forbidding the requirement of testing would make that community less safe, not more so.

And should such a system fail, without the comprehensive testing and monitoring protocols now in place, contact tracing would be slow, difficult and haphazard. The kind of quick response that limited the scope of last spring¹s transmissions so narrowly would be an impossibility. It's not hard to imagine a much, much more disastrous outbreak in a work environment unconstrained by testing and monitoring.

Contrary to some loudly expressed opinions in our community, AIM has always supported condom use and continues to advocate condom use as standard practice in the shooting of explicit material. However, if forced to choose between condoms and testing, given the unique nature of the sexual contacts under discussion, we would choose testing, and history so far would suggest that this would be the best choice of evils, though obviously we would prefer that no one be faced with such a decision.

As an aside, even if this dire set of circumstances were to come about, I seriously doubt that AIM's reason for being would evaporate. As I said, most performers will continue to resist working with untested partners. The likely scenario would be a return to the pre-1997 status quo, under which testing was considered a performer responsibility, unrecognized by producers in an official sense. With access to the PCR-DNA test we use now, this informal approach wouldn¹t be entirely without merit, but lack of uniformity and consistency would certainly increase the risk of a repetition of the circumstances that created the 1997 outbreak resulting in AIM's creation. I make this point by way of dismissing out of hand mendacious claims that AIM opposed government regulation out of self-interested territorial concerns. We are a non-profit organization that offers testing and other services to the entire population of Los Angeles. We do not consider the State of California a competitor.

I strongly disagree with your contention that unregulated shooting could be prevented from continuing underground. The 2257 provisions you cite refer specifically and only to ID and release requirements. Cal-OHSA has already stated that it cannot and will not attempt to establish culpability under the new regulations by examining X-rated products after the fact, acknowledging the possibility of post hoc technical fixes to the finished product that might either conceal or imply the use of barriers, contrary to fact. Producers will still be able to defy the Cal-OHSA requirements and, if not caught at the time of production or incriminated by witnesses after the fact, be perfectly able to release their products in full compliance with 2257 procedures. When we talk about production going underground to circumvent Cal-OHSA, we don't mean literally shooting off the books. We mean a kind of nudge-and-wink approach to the rules that counts on the relative rarity of actual inspections, and the ease with which they could be thwarted by cosmetic measures of dubious sincerity, as opposed to shooting in secret and releasing pictures outside legal distribution channels.

Similarly, when we talk about runaway production, we¹re not contemplating the prospect of the entire porn business relocating to a different state. Not only would it be difficult to find a state that would welcome such an enterprise, doing so would be economically impossible. The vast, multi-million-dollar infrastructure - studios, edit bays, talent agencies, equipment suppliers, duplicators, box printers, locations and a vast roster of experienced personnel - that has evolved in Los Angeles over the past two decades cannot simply be picked up and moved. What can be moved is the shooting part of the production cycle, which can go on anywhere, and already does. Much porn released by LA-based companies today is shot in Europe, Brazil and various remote locations in the US. Creating a hostile shooting environment here would hasten the decentralization of the talent pool, with the inherently greater risk of more participation by less-well-known and potentially higher-risk players, and impose harsh financial hardships on those performers who choose to remain in California and try to comply with whatever new regimens are inflicted on them. Essentially, those who stay here would make themselves uncompetitive with those who work elsewhere, a poor reward indeed for those who attempt to play by the rules.

It very much remains to be seen if, as you say, 'California has porn by the balls and can make the industry play ball.' Producers are not without means and industry lawyers are highly capable. Cal-OHSA has made a daring, and potentially calamitous, foray into making law where none has previously existed. It is simply impossible to predict the outcome of litigation in such unfamiliar territory. Likewise, I wouldn¹t be too quick to pronounce upon the final result of the appeal process regarding these initial Cal-OHSA findings. If a judicial ruling holds that the agency has overstepped its authority, the final result might be the exact opposite of that sought by the initiating officials. Cal-OHSA may be found to have no jurisdiction in this case or any other like it, putting an end to further attempts at state-imposed controls. Litigation, as any lawyer will tell you, is a crap-shoot. In this case, by risking the existing system of voluntary harm-reduction procedures, Cal-OHSA and the LADOHS is gambling with the health and safety of performers. A judge or panel of judges may be less keen to do so.

I do see some merit in your assertion that the upholding of Cal-OHSA¹s actions in the current case could open the floodgates to all manner of civil proceedings, many of them possibly meretricious in origin. I could easily imagine a performer, angry at being sent home for being three-hours late to a shoot, showing up drunk or high or without proper ID, filing a false complaint and then using that to undergird a frivolous lawsuit. I can also see false complaints filed out of personal animus and counter-claims by producers. Given the nature of porn performers¹ work, specific liabilities will be difficult to assign and very few damage awards are likely to be made, sustained or collected. Only lawyers stand to benefit from the atmosphere of legal ambiguity the new standards threaten to create.

I also agree that larger companies with greater resources would be much better at operating in such a hostile environment, which would lead to greater consolidation of wealth and power in fewer hands, a trend I would regard as unfortunate for both the production community and porn consumers. Among their many other failings, the new regulations would have an anti-competitive effect as an unintended consequence.

I do not agree that the flamboyant behavior of a few producers, or the complacency it reflects, are prime forces in the emergence of the latest controversy. Porn's visibility on the cultural radar has been rising steadily for years, and a deeply, viciously antagonistic administration in Washington has undoubtedly accelerated the inevitable intrusion of government into any enterprise that expands to a certain critical mass. This has all been coming for a long time, and would have come sooner or later whatever was or was not done within the industry. I do believe that the adoption of more responsible working rules on the part of producers might have made the impact of governmental oversight less destructive, but big money and big publicity always attract the scrutiny of the authorities.

On your final point regarding the growth of VOD, I would think this argues against the efficacy of such actions as those undertaken by Cal-OHSA. Some decentralization of porn production has already begun, and as the Web becomes the primary delivery vehicle, more and more product will originate far from the reach of any state or federal agency. The primacy of Internet porn may have many as yet unpredictable effects, but increased safety for performers is unlikely to be among them.

Ira Levine aka Ernest Greene

My Thoughts On Cal-OHSA Fines

AVN and other porn journalists have been writing since the 1998 HIV-breakout that the state was looking hard at porn companies' procvlivities to considering porn stars as independent contractors rather than employees.

There's plenty of precedence for considering porn stars as employees. There have been porn companies that got caught paying porn performers with 1099s (as though they are independent contractors) and they had to pay big bills to CA and to the IRS.

Why do Zero Tolerance, Shane Enterprises, Vivid, Wicked, LFP, VCA and other big compnies pay their talent on W4s? They consider their talent as employees.

It is against California state law for employers to ask for any type of medical test records from their employees, including porn talent.

Once the state determines that porn stars are employees, which they will determine as these latest fines indicate, producers will no longer by law be able to ask for HIV tests. You just have to have one porn producer ask talent for an HIV test and the talent to lodge a complaint with the EDD (Employment Development Department), and that producer better hold on to his wallet because the EDD will come down hard with fines.

Porn companies have escaped serious government scrutiny since 1992. The past 12 years will seem like a dream in the years ahead.

When these latest developments come to a head, there may be no reason for an AIM anymore.

I don't think the porn industry will be able to go underground to avoid these new regulations. Because of the federal 2257 laws (requiring extensive paperwork and IDs on porn performers), if the state ever suspects anything about a shoot, they just have to demand copies of the model releases from the producer and it will tell when the scenes were shot and who for.

Companies can't take their talent out-of-state to shoot because that would violate the Mann Act (federal law against taking someone across state lines for the purpose of sex). If Max Hardcore takes talent to Las Vegas to shoot, you might be visiting him in Lompoc.

Nevada doesn't want any porn shoots. Many Southern states (such as Texas, Florida) have laws against shooting porn.

OHSA is a federal agency but few states recognize it as legal to shoot porn. California has it on the books that it is legal to shoot porn, that porn actresses are actresses not hookers, because of the 1986 CA Supreme Court ruling on Freeman vs. CA.

California has porn by the balls and they can make the industry play ball and employ safe-sex practices such as condoms.

I expect T.T. Boy will challenge the Cal-OHSA ruling. He's throwing his money down the drain. He'll lose. Rest assurated that Cal-OHSA is working with the EDD now on the W2 question.

The industry will then fall into line with Cal-OHSA guidelines. Once the EDD and CA accept porn stars as employees, then Cal-OHSA has all the power in the world to mandate safe sex practices on porn sets.

It's going to be open season on companies that violate Cal-OHSA laws, such as TT Boy's two companies, for civil suits from porn talent alleging they were exposed to unsafe work environments.

Since Clinton came in and relaxed federal prosecution for obscenity, pornographers have been running around telling everybody how rich they are. They've been carrying around $5,000 in their pockets, driving fancy cars, living the high life. People with old money, people who either worked for it or inherited, keep their mouthes shut about their assets and try to attract as little attention as possible.

Instead of staying under the radar, the new pornographers have been promoting what a great enterprise they are and how they pay their fair share of taxes (often a lie). Now they've attracted the attention of the wrong people and there may be hell to pay.

A lot of porn companies (even those who pay on W4 forms and follow the law) will stop shooting in the US. Some stopped during Spring's HIV-outbreak and decided to only shoot overseas.

This Cal-OHSA intervention will make the big strong companies such as Vivid, Wicked and LFP bigger and stronger. The smaller companies will fall by the wayside.

Within five years, Video On Demand (VOD) will turn the traditional porn industry upside down. The New Beginnings, Goalies and their sex shops will barely survive. They'll sell a few DVDs and toys but most people will get their porn over the Net, downloaded to their harddrive. Adult book stores will fall by the wayside.

Who wants to go into a shop to rent porn when you can download it at home?