When Vivid Entertainment filed a lawsuit against AEBN in December, claiming its PornoTube website engages in wholesale copyright infringement and unfair business practices, the action took very few people by surprise. Frankly, much of the industry had been whispering about the near-certainty that someone eventually would sue one of the adult-oriented community sites, probably sooner than later. After all, Google-owned YouTube, the progenitor of the adult industry's bevy of user-submitted-content sites, had been under legal assault for a couple of years by December 2007, most recently with a $1 billion copyright-infringement suit pursued by Viacom. In its suit, Viacom accused YouTube of intentionally contributing to the piracy of 160,000 video clips, primarily from Viacom properties MTV, Comedy Central and Nickelodeon, by allowing the unsupervised uploading of the clips to its website. Vivid had a similar gripe about PornoTube.
The two cases, both in federal court in December, indicate content owners' growing willingness to take decisive, very public action to curtail the misappropriation of their products by free sites that encourage users to upload "their own content." At one time, commercial porn producers' ire was directed at peer-to-peer networks that allow users to share copyrighted material with little oversight. Mainstream lawsuits and federal crackdowns on the P2P networks - in addition to a well-deserved reputation for virus proliferation - helped to curb some of the rampant piracy for which so-called "torrent" sites are notorious, as have a flurry of successful and well-publicized lawsuits against individual file-sharers.
The tube sites are a horse of a different color, though. Most of them don't directly make money from users; instead, they fund their existences by selling top-dollar advertising on their well-trafficked pages or directing their traffic to affiliate programs or their own pay sites. Since their inception, tube sites have maintained that they enjoy "safe harbor" protection under certain Digital Millennium Copyright Act clauses that were designed to shield Internet-service providers, online forums and other virtual publishers from liability for the actions of those who post to them. One prevailing school of thought holds that as long as a digital publisher doesn't "edit" the user-submitted content - by changing its format, manipulating its message or prioritizing its display, for example - it is reasonably immune from prosecution for contributory copyright infringement. The Vivid and Viacom suits may clarify that notion.
Revenue shrinkage has reached epidemic proportions among traditional San Fernando Valley adult-entertainment companies; for some, video revenue has plunged by as much as 50 percent from its peak. Vivid and other adult companies that rose to prominence during the home-video age blame new technologies and shifting consumer mindsets about porn's social relevance for much of the revenue decline. Some, like Vivid, have replaced their brick-and-mortar losses with digital-distribution efforts of their own, but the explosion of free and user-submitted content on the Web - particularly on sites like PornoTube, Xtube and YouPorn - continues to present challenges to traditionalists and adult-content producers who premiered online. Although many companies have made efforts to find ways to use the tubes to their advantage, it's not uncommon to hear the lament "The tubes are killing us!" from all quarters of adult-content production - not only because of copyright infringement, but also because tubes enable a vast outpouring of amateur content from bedrooms (and living rooms, hot tubs, public transportation, the outdoors and virtually anywhere else people can have sex) around the world.
But are the tubes really killing the industry? Or are they killing themselves with financial models that are potentially unsupportable over the long term and easily targeted for legal action? Does the rise of the tubes herald widespread decline in an industry once touted as "recession-proof"? Or are tubes just another in a succession of aggravations and disruptive technologies this maverick industry has dealt with since its birth? Perhaps, as some have suggested, the tubes actually will lead to new and even better models for adult-content distribution, leveling the playing field even further. Or perhaps, as others have said, they really amount to nothing more than a blip on the radar screen and will disappear before doing any permanent damage.
In the meantime, should one attempt to beat them, join them or work around or with them?
Inner tubes
As with other segments of a closely held, intensely private industry, it's not easy to pin down what impact tube sites are having on adult entertainment. Though most tube sites are tight-lipped about their traffic and revenue, Kurtis Potec, Xtube's accounts and public-relations manager, said Xtube has more than 5 million registered members and receives about 5 million unique visits daily.
Other than relying on anecdotal reports, the best one can do to pinpoint popularity on a global scale is to refer to the imprecise but popular Alexa traffic index. In mid-December, Alexa gave YouPorn, the apparent leader in the category, a traffic rank of 39, and its global reach in percentage of Internet users (1.5 percent) was roughly twice what Alexa reported in May, when Stephen Paul Jones tried to sell YouPorn to Vivid for $20 million. PornoTube, with a traffic rank of 192 and a global reach of 0.3 percent, and Xtube, with a traffic rank of 203 and a reach of 0.25 percent (up 67 percent over the previous three months), weren't that far behind in the grand scheme of things. Neither was relative newcomer Shufuni.com, which only ranked 1,053th in traffic with a 0.098 percent reach but had experienced a meteoric 175 percent reach increase over the previous three months.
The most interesting thing about the adult tubes is what they're doing with all that traffic. According to Alexa, 99 percent of visitors to YouPorn, Xtube and Shufuni stay on the sites, and only 1 percent of visitors leave via external links. None of PornoTube's traffic is shuttled off the site. Instead, 2 percent of PornoTube's visitors click on links that direct them to VOD.PornoTube.com, which is a skinned version of AEBN's online theater and presumably is the reason for PornoTube's existence: to generate income by convincing even a tiny percentage of free-porn surfers to pay by the minute for professional-quality, on-demand adult entertainment. The mechanism represents a pretty brilliant marketing maneuver by AEBN, which earns its living by presenting video-on-demand versions of some of the hottest titles from the biggest companies in adult entertainment. (It should be noted that Vivid operates its own VOD service instead of partnering with sites like AEBN.) According to a confidential source inside the company, AEBN makes a tidy little sum each month from PornoTube's traffic machine.
Tube stakes
However, if Alexa's statistics are to be believed, companies that advertise on free tube sites may not be doing quite as well at capitalizing on the traffic the tubes generate. Potec said banners advertising pay sites don't always convert well, even though per-click campaigns often "close within minutes" due to the sheer volume of curious surfers clicking on any link they can find on Xtube. Webcam ads, though, have seen conversions as high as 1:100, he added. "Our surfers are clickers," he said, chuckling. "They click on everything because they've learned every link at Xtube leads to [some kind of] porn."
That hasn't been PussyCash's experience with other tube sites, according to Business Development Director Yuval Kijel. PussyCash helped some business associates establish Shufuni, and the site still isn't sending any significant traffic in PussyCash's direction, he said. "It costs too much for what we get out of it," Kijel said of the ImLive and WildMatch banner ads PussyCash used to run on YouPorn, PornoTube, Shufuni, RedTube and Yuvutu. "[The users] want free stuff, so they convert badly. I don't think those sites will be around long."
Tubes don't always work well for companies that use them to promote their content, either. YouLoveJack owner Karl Edwards said the majority of professional-quality content he's found on tube sites has been uploaded by the studios themselves or by their affiliates in a bid to increase traffic to their own sites or their wares at VOD partners' sites. Edwards said that idea certainly is worth exploring - he advises content producers to at least attempt to work with the tubes in that way to judge effectiveness for themselves - but he hasn't found tubes to be particularly useful promotional vehicles. "I've found them to be the modern-day equivalent of [thumbnail gallery posts]," he said. In other words, they circulate some traffic for him, but like PussyCash, Edwards has found the traffic to be of little conversion value.
In fact, the whole tube-site phenomenon perplexes Edwards. "If I hear how great tube sites are one more time, I'll throw myself off this office chair, I swear to God," he said. "[The adult] industry has a tendency to duplicate rather than innovate: They flock like a bunch of lemmings to whatever is new, regardless [of] whether it's effective or good for the industry. Last year, it was MySpace[-like] sites. MySpace is what the Internet was originally; it's just a new mechanism to reproduce what everyone's been doing all along."
Edwards said he doesn't think tube sites are enormous contributors to content piracy. Tube-site owners say they quickly remove the small percentage of illicit material on their sites when they receive takedown notices, as the Digital Millennium Copyright Act requires. Edwards said a much bigger threat to intellectual-property rights are sites like Megarotic, which facilitates covert sharing of adult videos. Dedicated porn pirates seek a return on their illegal investments, and while tube and community sites provide rewards primarily in the form of notoriety, sites like Megarotic reward posters financially, if somewhat indirectly.
Instead, Edwards contends, the biggest impact user-submitted and community sites are having on the adult industry is in the changing way consumers think about porn and the way producers are responding to those changes. Individuals' tastes in adult entertainment undergo refinement over time as, through sampling and experimentation, they discover what really speaks to them. "Tubes sites actually escalate that process," Edwards posited. "People [no longer] see porn and say, ‘Oh, it's porn. It'll do.' People are buying my product because it matches their desires. They don't buy just any old porn; they buy that porn." If nothing else, tube sites make discovering that porn easier, Edwards noted, by presenting almost any imaginable niche and fetish in one online super-directory.
Pride Studios co-owner Harlan Yaffe, on the other hand, has a much dimmer view of the tube phenomenon. Although he admitted tube sites can be effective promotional vehicles for studios that ensure their content is watermarked and carefully controlled, "a monster has been created," he warned. "The tube sites are really the 800-pound gorilla in the room that everyone keeps feeding, but they don't know how to tame the gorilla." Even the most carefully selected and controlled tube-site postings can be problematic because "you're removing the reason to buy," Yaffe added. "You're becoming part of the big problem. There's enough pirated content and enough affiliate-submitted content on the tube sites for a consumer to get off, so why would he pay [to join a website]?" That's part of the reason Pride Studios eschews tube sites entirely and demands that its content be removed when it - or its loyal customers - discovers runaway content posted without permission.
Tubular (alarm) bells
Whether tubes contribute to content piracy, generate massive traffic or provide an intriguing promotional mechanism, other aspects of their existence have pricked the ears of some members of the legal community: age-verification and content-labeling issues. Since the dawn of the tubes, attorneys, journalists, bloggers, law-enforcement entities and members of various foreign and domestic governments have criticized tubes and other user-posted-content forums as potential vectors for distribution of child pornography. After all, they're free, relatively anonymous and easy to use, and the volume of content posted daily makes policing every clip a Herculean task.
Yet that's exactly what tube-site owners need to do in order to protect themselves, according to attorney J.D. Obenberger, who has consulted with a number of tube-site entrepreneurs and counts one "very successful" tube among his clients. Despite what some may feel about content screening leading to loss of safe-harbor protections, Obenberger said tube sites have moral, ethical and, possibly, legal obligations to preview content before it goes live in order to ensure copyrights and children's innocence aren't violated. "Congress intentionally protected [from legal action] many postings on the Web in order to ensure the Internet grew as a free and open communication medium," he said. "If you make [user-posted-content sites] liable for copyright infringement [perpetrated by their users], they're going to go out of business."
Although there are safeguards built in to protect all the cogs in the free-expression wheel, Obenberger said "the law may permit screening of [uploaded] material for copyright infringement and child pornography. I admit it's not crystal clear, but I think indications are there that you don't lose anything under the DMCA by screening for those two things." Reformatting content, adding to it or subtracting from it, or deciding that some content is "better" than other content and should receive better placement on the site may invalidate safe-harbor shields, he added.
Potec said Xtube's users are the ultimate enforcers when it comes to matters like child porn and pirated content. "They police the content for us," he noted. "We give all of our users the ability to remove content by flagging it and sending us the reason right from the screen they're viewing." Once flagged, potentially illegal content is deactivated until Xtube administrators have investigated. Content posters can defend their material, but if they're found to be in violation of any of Xtube's policies, they're banned on the first offense, by IP address, username and email address. Potec said Xtube has an automated system that requires users to affirm - before they post - that the content they upload is theirs and they have all age-verification documentation required under the law. Submitters not only must click four links to confirm their affirmations, but they also must provide copies of relevant 2257 documentation if they participate in the site's revenue-sharing program for amateur filmmakers.
That apparently is an area in which Xtube's process diverges from PornoTube's, although that could not be confirmed, since PornoTube declined to comment for this article. Labeling - or failure to label - sexually explicit content is at the heart of a significant portion of Vivid's lawsuit against PornoTube. Although the 6th Circuit Court of Appeals, in a November 2007 ruling, struck down as unconstitutional the portions of 18 U.S.C. 2257 mandating recordkeeping by so-called "secondary producers" - essentially, those who merely distribute content produced by someone else - "labeling falls on everyone's shoulders," Obenberger said. He noted it's fairly easy to tell when a studio has uploaded its own content to a tube site, since such content typically is of high quality and bears the age-verification label required by U.S. law. Pirated content typically is of lower quality and bears no label, Obenberger said, often because the poster wants viewers to believe he shot the video.
That is the crux of Vivid's claim that PornoTube violates California's "fair competition" laws by allowing users to post Vivid's content without permission. "PornoTube and AEBN have exactly the same responsibility as any other adult-content distributor or producer to obey ... 2257 regulations," said Steven Hirsch, co-chairman of Vivid. "Vivid spends enormous sums to ... comply with the Child Protection and Obscenity Enforcement Act age-verification process. PornoTube and AEBN have been getting away with a practice that unlawfully earns it millions of dollars at our expense."
Paul Cambria, the attorney who filed the lawsuit on Vivid's behalf, added, "Vivid should not have to take responsibility for policing PornoTube on a minute-by-minute basis to protect its rights. ... Once [PornoTube puts] up any material on their site and fits it into their format, they are no longer just a pass-through medium: They have become producers or distributors under the law. AEBN and PornoTube are not exempt from their responsibility to comply with 2257 rules, and we will demonstrate in court that they are obtaining an unfair business advantage by violating this obligation."
This story first appeared in the February 2008 issue of AVN Online magazine. To subscribe to AVN Online, go to https://www.avnmedianetwork.com/subscriptions/
