MIAMI, Fla.—On Thursday, Hydentra L.P., which does business as adult content providers MetArt and SexArt, sued MindGeek USA, owner of (among many other things) Pornhub and its latest incarnation, PornhubPremium, alleging that Pornhub.com has been "displaying copyrighted adult entertainment content and utilizing trademarks without authorization in order to attract users, and distract them from the trademark owners’ services for financial gain." The suit was filed in the U.S. District Court for the Southern District of Florida, Miami Division, in part because although none of the parties was incorporated in Florida, MindGeek USA has offices in Miami.
In the lawsuit, Hydentra/MetArt claims that "Pornhub.com has been utilized by Defendants to collect Plaintiffs’ copyrighted works and trademarks for unlawful and unauthorized display on Defendants’ new pay-only membership site Pornhubpremium.com, where Defendants charge a fee to view Plaintiffs’ works," and that "Plaintiffs discovered numerous copyrighted works on Pornhub.com that were not mere promotional materials, were not provided by Plaintiffs, and were not authorized for display on Pornhub.com."
Hydentra alleges that although it demanded that all of its copyrighted works be removed from Pornhub.com, that the site's owners failed to do so, and moreover, "took these same materials and utilized them for direct financial gain, directly charging internet users money to view the videos in high definition, without interruption of advertising, and to download the videos."
Hydentra is particularly incensed that with the recent creation of PornhubPremium.com, Pornhub is charging $9.99 per month to subscribers to view MetArt's copyrighted material, a list of some of which appears in an appendix to the lawsuit.
"Defendants approached Plaintiffs in the spring of 2015 seeking permission to display Plaintiffs’ works on Pornhubpremium.com," the lawsuit recounts. "Plaintiffs refused to grant such permission," adding that, "Defendants displayed Plaintiffs’ copyrighted works in the Pornhubpremium library, the same videos Plaintiffs demanded to be removed from Pornhub.com and the same videos that Defendants confirmed would be removed from Pornhub.com."
Hydentra also has an issue with the fact that the Terms of service for PornhubPremium allow members to upload content to the site with essentially no oversight by the company, since "The Terms of Service also dictate that a user’s upload is confirmation by the user that the user has license to post the video and to grant Defendants further license to use the video." However, Hydentra notes that the violations of its copyrights occurred even before the creation of PornhubPremium, and were apparently ported over to the new site from Pornhub itself.
At issue are 100 Hydentra-copyrighted works and "over 523 separate and distinct URLs"—and the fact that the metadata and metadescriptions on PornhubPremium include MetArt trademarks, which also forms part of Hydentra's argument that Pornhub/MindGeek is well aware that the infringing material is on its sites, and that the companies therefore cannot avail themselves of the protections of the Digital Millenium Copyright Act (DMCA).
In part, the lawsuit seeks to have Hydentra's copyrighted material removed from all of the Pornhub sites and the trademarks from Pornhub's metadata, to refrain from using Hydentra-owned material in Pornhub marketing or advertising, and to police its sites so that subscribers to the sites will not be able to post Hydentra/MetArt/SexArt content to the sites on their own.
However, Hydentra's lawsuit goes even further, in asking the court to order that the defendants "transfer the domain Pornhubpremium.com, and all similar domains held by Defendants found in discovery, such as misspellings of the enumerated domains, domains held by Defendants linked to www.Pornhubpremium.com, and the content therein to Plaintiffs," which would essentially give Hydentra ownership of PornhubPremium. Hydentra also seeks to be awarded damages and attorney fees, plus estimated costs Hydentra will incur in future policing of the pornhub sites, and for the defendants to be found liable for inducing its users/subscribers to pirate others' material by making it easy to post such material on the defendants' websites. Other counts seek similar remedies for the defendants' trademark infringements of Hydentra's trademarks, and for inducing others to infringe them as well.
But even that's not all. Hydentra wants the court to make it clear that the defendants do not have permission to use Hydentra-owned material, and that their having done so has diluted Hydentra's copyrights and trademarks in violation of the Lanham Act. The suit also alleges that the defendants have violated the agreements that the Hydentra companies have made with the models who appear on its sites, which has resulted in unauthorized publication of those models' names and likenesses, in violation of Florida Statutes Section 540.08.
The Hydentra/MetArt/SexArt complaint can be read here.
Check back with AVN.com for developments regarding this very important lawsuit.
