Coalition Builder: Interview With FSC leader Diane Duke

The July 2012 issue of AVN magazine is themed around issues of free speech. And what would such an issue be without a nice long chat with Free Speech Coalition executive director Diane Duke? She gave generously of her time to talk about the evolution of FSC in a constantly evolving industry whose challenges are many and varied, but whose popularity, though divisive, has never been greater. 

Do you think FSC’s role, and the perception of its role by the industry, has changed much?

I think that FSC has gone through a number of changes before and after I arrived. Early on, when the association was first established, it was all about lawsuits, putting together that purse that would be needed when the industry got the big attacks. Almost immediately, though, people realized that there were so many criminal prosecutions happening on a regular basis that the entire budget of the Legal Defense Fund, as it was called back then, would be totally eaten up in a matter of months. So they concluded that just doing court cases and lawsuits for people was not a role that any group could do, and from then on the association’s role began to evolve.

When I came on in 2006, the big issue was 2257, because it had just hit big time. Shortly after coming on, however, I started hearing a lot about piracy and all the free content out there, and soon that became a much bigger issue than 2257 or .XXX. But these were all issues that came with the evolution of the internet. When I started was when the tube sites really started up, along with the development of technology to make it easy for people to steal and disseminate large files. Everything was just starting to get bigger, better, faster, and people in the industry were trying to figure out how to market in that sort of economy.

From the moment I got here I have been made acutely aware of the changes and how they are affecting the industry and the people in it. I speak with so many people on a daily basis, and doing that has allowed me to see and appreciate where the industry is going. But in going thorough all this, it also started us thinking about what a trade association really needs to do. What does a business in the industry need from the FSC?

Well, one thing it needs is an organization that is going to help with things like insurance, for when you get dropped by an insurance company because they realized you were in adult. We have people calling the office regularly with those kinds of issues, so we now make sure we have insurance brokers available at the drop of a hat. When production insurance went away, that was something we worked on to make sure it was brought back in. We did that because it was something that was tangibly needed.

These services seem to be one of the benefits of FSC that is rarely acknowledged. 

Well, I’m working now to see if we can get group health coverage for the industry, for company employees. We’ve been working on that for probably two years. I started when I heard from companies complaining about double-digit increases every year. I mean, nobody wants to write that policy because it means that they will have to give discounts, but we keep pushing and talking to different insurance agents; I’ve got a couple of them working on it right now. These are the sorts of things that make a day-to-day difference. 

During the dot-com bust, porn not only survived but thrived, which seemed to bear out the idea that it was in fact recession resistant. What’s happened? 

It was actually dot-com resistant. If you look at what porn had, it had substance. It was the dot-coms back then that had no substance. Then the technology came along that allowed people to get it for free. Now, it’s the folks on the internet who are the pirates, the new cowboys. Our industry had always been the cowboys, but now we’re screaming because they are stealing from us. And it’s right that we scream and fight back. It’s a different set of cowboys now, and the new ones who crash the systems and networks of anyone who complains about them.

What about when we are the new cowboys? APAP, for instance, came out of a situation where we were devouring ourselves. We can’t say the problem sites were them, but us. 

No change like this ever happens gracefully. We are dealing with tube sites that comply at different levels. In the APAP program, we have companies that pay the software company so no content that they have fingerprinted will ever go up on the site. And they sweep their back catalogues daily now. Is there still stolen content on that tube site? Yes, because not everyone has fingerprinted. If people fingerprint, their stuff will not go up. 

Now, keep in mind the industry we work in. The owner of one of our APAP studios was on the boards very recently screaming about his content being on an APAP member tube site, and how could this happen? Well, I called him up and it turns out he hadn’t digitally fingerprinted any of his content since 2010! I told him, ‘Yes, maybe I should have been holding your hand to make sure you were doing what you needed to do to protect your content.’

What did he say?

“Yeah, well. They still have my content up there.”

And then, the very same guy hits me up after all the content he had been complaining about had been taken down, now complaining about not being able to upload his content to the same sites for marketing purposes, because everything of his was being blocked. You can white-label content you want to put up there but he had not bothered to do it. So I held his hand again and put him in touch with Vobile to get that fixed.

Does this happen often?

Commonplace, with everything I do, but if we are serious about being the type of trade association we want it to be, with the level of member service we want to provide, we hold hands. 

What about the people who say enough already with the tube sites and any of these APAP-like programs that they think reward them for their bad ways? Sue the bastards! 

My response is that here is a tool that we are giving people that they can use. They can fingerprint their stuff, and if the tube site is compliant, it won’t go up, or it will go up in a rev-share version that can earn some revenue from what could be significant traffic. 

But APAP is not going to protect the tube sites from any other abominations they may be committing, or that they may have committed before signing up to participate in the program. Nor will FSC stand up and say an APAP tube site is fabulous and has never done anything wrong. All I can say is that there are tools available that are effective for tubes sites that want to join us, and tools that are effective for people who want to keep their content off of those tube sites. 

We are not here to encourage or stop anyone from bringing lawsuits, but for the enforcement part of it, yeah, go ahead and use our Videotracker product for research or to build a case against someone for a lot cheaper than it would cost to have an attorney do it.

Okay, but a lawsuit is war by other means, and sometimes they reveal a deep problem in an industry. So one can ask, what’s the bigger picture here and where is all this headed? 

Well, one of the things we saw with SOPA is that they were trying to get tube sites to proactively keep stuff from going up. Recently, I was talking with someone who was telling me that the tubes should just look at everything before it goes up. But realistically, does YouTube look at everything before it goes up? Is it possible? 

With the digital fingerprint, it’s not only technologically possible, it’s an easy process that doesn’t cost the content provider anything but does cost the tube site something, whether it’s revenue from advertising or paying the technology company. But it is certainly a way to put a technological eye on your content before it goes up. It is not a magic pill out, but the magic pill isn’t litigation, either, or technology, It isn’t sending DMCAs, or ... 

... the government?

It certainly isn’t the government! But what it is going to be is a combination of all of those methods of combating infringement, and it also means that our industry is going to have to focus on what the consumer wants and how the consumer wants to get it.

Will any of this be in time for an industry that is made up of more than just tube sites ranking 100 and below on Alexa, with content producers relegated to making a fraction of what they would if they had their own traffic? 

You could have said that same thing during the time of the live porn theaters. Will the industry survive VHS tapes? The industry was very different back then and it is still evolving. But I do not think it’s only going to be tube sites in the future. I think we still need good quality content. 

Does all of this speak to the evolving role of FSC? After all, this may be an insoluble problem. We want an open and free internet, but with it comes this huge problem where content owners aren’t sufficiently remunerated, if at all. 

We need to continue to go after these aggregators, like Pirate Bay, that are businesses making money off of stealing content.

Right, but in England they directed the ISPs to block Pirate Bay, and immediately Pirate Bay put up these proxies. Everyone goes over there, and now the ISPs are saying, forget it, we’re not blocking anymore, it doesn’t work. 

It will work itself out. We are in a time of transition and change. I think in addition to new technological tools being developed, like digital fingerprinting, the solution is basically two-fold. For the companies whose business model is built on stealing, you have to hold their feet to the fire, and I think this is happening. And you have to look at where you can develop new models.

So, coming full circle, when faced with this momentous change, what is the real role of FSC? Industries want to make their future and not always react to what’s thrown at them. 

True, but look at the MPAA or RIAA. Neither of them have been able to do that.

Indeed, but I am asking about the role of the association representing an industry like ours. Is it the role to react to momentous changes or help the industry create its future? 

Yes to both, and I would say that is what APAP is all about. It was reactive in that piracy was affecting the industry, but it was proactive in the sense that we did not just stick our heads in the sand and say let’s sue the bastards out of business. It was a way of acknowledging a popular platform for distribution, and asking how can we tie into it and keep them from destroying the industry. We looked at using the platform instead of just eliminating it, if that would even be possible.

Piracy, mandatory condoms, obscenity, an upcoming election, dot-xxx still on a burner ... what other major issues are facing the industry?

The patent trolls, zoning issues are always an issue for us, and now, from the novelty side, the issue of knockoffs out of China. And then on the flip side, while speech is limited in China, the ability to purchase adult novelties is not limited, and in fact the population spends a lot of money already on them, so there is also tremendous opportunity. 

During our next retreat, we will be putting together the next three-year plan, and all of those issues will be on the table in terms of us having to consider them in a long-term way. We’re going to be launching a new website in the fall, and we are looking at out brand, and at our trademark, and who we are and how we want to be in the world, and also how we want to communicate that identity to the world. We are also putting together a speakers bureau and are looking at a number of other ideas associated with that. The plan is to get a lot better about our messaging and the mainstreaming of it.

Is that all a part of taking control of your destiny?

Yes, absolutely. Message is going to be a huge part of it; communication is going to be a huge part of it. And then I also want to be more aggressive in terms of exposing, for example, some of the less than stellar behavior on the part of AIDS Healthcare Foundation.

I also want to be able to do that kind of work more in the open. I can’t talk about a lot of the work that I do, the meetings I have, because we are from the adult entertainment industry and we have to go in the back door. The fact that we get the meeting and are able to build the trust with individuals and know that it is not going to be in the newspaper the next day is important, but it also frustrating because to the industry it’s not visible and looks like inertia. I move forward and continue to do this work—and of course, none of this happens overnight; it’s often a year or two in the making—but then on the other end I’ll never be able to say, ‘This happened because I had a meeting with the governor!’

Which brings up the issue of the vocal critics of FSC. Does it upset you that they get more traction with their complaints when your hands are often tied about what you can say? 

I think there will always be people questioning our reputation. There are people who criticize us just for the sake of criticizing, but the thing is, in an industry that has always considered itself renegade we’re probably the closest thing they have to authority, which is pretty laughable considering I’m about as far from an authority figure as you can get.

Do you think it hurts the effectiveness of FSC?

Any time I have to spend time on it, it’s an impediment, but it also comes with the territory. And guess what, we ‘re not going to get it right every time, I can promise you that. In fact, we’re going to make tons of mistakes. But we are also never going to quit fighting for the industry. I love this job more than the day I started. This is where I am supposed to be.