This article originally ran in the April 2013 issue of AVN magazine.
It seems that the adult video industry already must have taken all of the beating that it ever could from piracy. The adult internet industry has largely revised its business model; little is left of the adult DVD business. While a few companies have attempted to make a profit center out of suing end-user p2p file swappers, nobody has proven that to be a substitute for the “good old days” of a decade and more ago. Moreover, the extent of success against properly operated “tube” sites is very limited, although there is a glimmer of hope from the beef between YouTube and Viacom that continues to develop in New York City (Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 [2nd Cir. 2012], from which the case is now awaiting trial on remand). But who has the financial wherewithal of media-giant Viacom?
Here’s the scoop on the YouTube/Viacom battle: YouTube hosts tons of Viacom’s copyrighted programming, along with that of most others—except adult, that is. Viacom brought a copyright suit; YouTube claimed DMCA immunity. You can bet, by the way, that YouTube dotted all of its i’s and crossed all of its t’s when it came to DMCA compliance. Accordingly, YouTube filed a motion for summary judgment—that’s a motion that says to the other side, “Even if everything you say is true, you lose.” And Viacom lost, the court approving DMCA immunity for YouTube.
On appeal, however, the federal Second Circuit Court of Appeals—one of the more prestigious in the country—said, “Not so fast.” Given the discovery, the appellate court said that indeed Viacom had a shot at establishing infringement and piercing the DMCA immunity. So, the case was sent back to the trial court for the two Goliaths (Viacom, the media giant, joined by others, and YouTube, owned by Google) to go at each other, which they did.
What the appellate court focused upon was the longstanding principle of “willful blindness.” Example: For a couple of hundred bucks, Defendant purchases a gun obviously worth $5,000 and with the serial number filed off. Does Defendant know that the gun was stolen? No. Is he charged with knowledge? You bet! Even in a criminal case, those facts would be enough to convict—although the defendant would be entitled to contest as much, perhaps by establishing that he never owned a gun, knew nothing about guns and, as far as he knew, a couple of hundred was a fair price.
The contention of Viacom (and the roster of other plaintiffs that have chimed in) will be that YouTube was an acknowledged copyright thief. It is difficult to determine just what is going on now; some sealed documents have been filed as of late. Also, as you might imagine, there is an army of attorneys on each side.
At this juncture, there is no adult company with the wherewithal of Viacom and its friends; also, there is no adult tube site with the resources of YouTube. However, if the Viacom/YouTube spat comes out with some clear direction, that may define how the tube sites can survive or not. Another distinct possibility is that the case will settle, which will leave everyone wondering.
Another factor, as we all know, is that your home computer and your television soon will merge, if they have not already. When everyone becomes accustomed to receiving television over the internet, piracy can only increase.
The damage that piracy has done to the adult motion pictures has been killing it with a thousand cuts. Whether anything can reverse that trend is doubtful. Indeed, many an internet company has revised its business model to embrace the assumption that enforcement of adult copyrights is impossible.
Meanwhile, heavyweights AT&T, Time Warner Cable Inc., Verizon Communications Inc., Comcast Corp. and Cablevision Systems Corp.—representing a sizable chunk of the ISP industry—have announced a new offensive against piracy. This gimmick, dubbed the “Copyright Alert System,” is advertised, according to sources, to bring the major ISPs “under one uniform program” to identify and retaliate against serial pirates. That is being done with “intelligence gathered by the Recording Industry Association of American and the Motion Picture Association of America.” Conspicuously absent from the MPAA-RIAA alliance, as you might expect, is the Free Speech Coalition or any other representative of adult video.
Looking at the threat, however, it does not appear as Draconian as suggested. After detecting four to six illegal downloads, the ISPs propose differing threats of sanctions, ranging from calling the offenders on the telephone to asking “repeat offenders to watch an educational video.” Another possible step is to reduce up- and download speeds of repeat offenders. That’s going to stop piracy? Well, Time Warner Cable says, “We reserve the right to terminate a user’s account for serious abuse.” Notably, this does not seem to pose a threat to streaming by tube sites.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on adult entertainment since 1980. He can be reached at [email protected]. More information can be found at ClydeDeWitt.com. This column is not a substitute for personal legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal attorney.
