The industry that is killing this industry is the "tube" industry. And the film and television folks in Hollywood aren't wild about it either.
Ground Zero in the battle between copyright owners and the "tubes" is New York City, where a lawsuit is brewing,brought by Viacom and a cadre of others against YouTube and Google. And this is no small endeavor. The docket report lists a total of 35 attorneys (14 plaintiff/21 defense), representing huge, multi-city law factories from New York City, Chicago, the Bay Area, Denver and Minneapolis.
The moral of the story is that whatever anyone in this industry tries to do about the "tubes," ultimately, this behemoth New York case will decide the issue, perhaps with the assistance of Congress in the long run. There are other cases ahead of this one, including actions brought by Vivid and Titan against adult "tubes." But it is likely that if the Supreme Court is ever to take up this issue, it is going to do so between these two media giants, not smaller players in the adult industry.
The central issue, of course, is the DMCA safe harbor. And they are nowhere near the point of resolving that issue. Thus far, the only two serious, substantive decisions are one denying a claim for punitive damages - increased statutory damages for willful infringement are enough, the court found - and a recent skirmish over what evidence YouTube and Google would be required to produce for the plaintiffs' review, where the court ordered that the defendants turn over a whole bunch of stuff that they wanted to keep to themselves.
But when is a "tube" really a "tube"? Do people really sit in their basements uploading dozens of 30-minute clips taken from generally available adult DVDs? What is their motivation to spend all of that time doing it? They get no benefit or notoriety. Are the "tubes" perhaps posting their own clips? One wonders; but no puzzlement here.
The following is a bit technical, but be tolerant! There may be a magic bullet. Here it is:
The "tubes," as noted, all are claiming immunity under the DMCA safe harbor. If they prevail in that claim, the DMCA safe harbor holds that they cannot be sued for copyright infringement - or anything else for that matter, such as defamation (libel and slander), trademark infringement, invasion of privacy, and so on. That is not to say that the "tubes" are not guilty of any of these wrongs. Rather, it is only to say that they are immune from being sued for any of them. The policy underlying this safe harbor is to promote the growth of the Internet, by the way.
But what about the surfers - perhaps millions of them - who upload the video clips on which you own copyrights? When they upload your video without permission (i.e., without a license), then they are committing a copyright violation, which is one of the exclusive rights of copyright owners.
So, should you sue all of the uploaders? Obviously not! But who is helping the uploaders do their uploading? First, there is the "tube," which is immune. But, also, the advertisers that are funding the entire operation; and the advertisers do not appear to be immune.
Going back to English common law, people can be held responsible for the wrongs of others if they knowingly help out. For example, someone can be convicted of robbing a bank if he planned in advance to drive the getaway car. This general principle applies to civil cases as well. If you hand over your car keys to a drunk, you stand to be held responsible for the injuries to the victim of the inebriated driving of the sot to whom you gave the keys.
So, too, is the law of copyright infringement that one can hold one person liable for another's infringement. "One infringes contributorily by intentionally inducing or encouraging direct infringement," says the Supreme Court in the Grokster case. Aren't the advertisers "inducing" and "encouraging" the posters - whoever they are - to post infringing materials by bankrolling the "tubes"? While the advertisers cannot possibly be blind to the fact that all of this infringing is taking place, what if they are given notification? Chase the advertisers, dry up the advertising revenue, and it just might dry up the "tubes."
Clyde DeWitt is a Los Angeles and Las Vegas attorney whose practice has been focused on adult entertainment since 1980. He can be reached through AVN Online's offices, or at [email protected].
This article originally appeared in the October 2008 issue of AVN Online. To subscribe, visit AVNMediaNetwork.com/subscribe.
