Acacia Media Technologies may have begun reaching toward adult Internet companies affiliated with or linking to sites that provide streaming media content, even if the affiliates or the linkers themselves don't use streaming media.
Industry insiders say a small number of adult Internet affiliates, and other sites who link to the content providers featuring streaming media, began receiving queries from Acacia this week. These insiders said that the queries suggested the affiliates or linkers in question could be liable for infringing by association Acacia's controversial streaming media patent claims.
The matter was one of the hottest discussion topics across several adult Webmaster message boards, but NewDestiny/Homegrown Video president Spike Goldberg – who has co-led an effort to challenge the Acacia patent claims – cautioned that, until or unless the patent claims are dismissed in court, Acacia has the right to enforce them.
Acacia had said as early as July that they were considering such a move, after announcing they were reaching out to adult verification systems. Senior vice president Robert Berman was unavailable for comment October 24, but he had told AVN.com in July that the issue involved here was "contributory infringement," providing access or linkage to sites Acacia believes infringed directly on the claimed streaming patents.
"They're inducing…people to infringe…by providing the links," Berman said at the time. "They know there's video streamed on their member sites, and they're inducing infringement by providing links to those sites."
But one industry insider, who asked not to be identified, told AVN.com the letters were going to people who had nothing to do with streaming media at all, or to people who weren't even in a position to make such decisions.
"It blows my mind how our system is allowing them to continue," this insider said. "They have no idea what they are doing, who they're sending notices to, or even if the site streams audio or video. They're doing this blindfolded."
Goldberg told AVN.com that one reason people are panicking is because of speculation that Acacia "must have gotten" a list of people to query from "somebody."
"People are frustrated because they ended up with this letter. And I've heard a lot of names mentioned," said Goldberg. "I'm fighting Acacia so that my clients don't have this problem. But whether or not they got the names from anybody, Acacia for now has the right to enforce their patents. I don't want people to forget what the whole point is, and the point is that Acacia is after them. They're not being targeted because they were on a list. They're being targeted because Acacia was planning to get to them anyway."
For Sex.com president Gary Kremen, the prospect of Acacia claiming contributory infringement illustrates the "danger" of not buying traffic, using cost-per-acquisition – "the pay per signup model of Webmaster programs" – instead.
"Anybody who sends traffic to anyone using streaming can get sued by Acacia," Kremen said. "If you send traffic to, say, Brad Shaw, and if Brad Shaw has to pay Acacia for using its streaming technology, then you have to pay also, because you are violating the patent. You are a distributor."
In late September, Acacia announced they had decided on November 30 as a deadline for companies they have accused of infringing the patents to settle with Acacia and, concurrently, gain a waiver of any past royalties or fees Acacia would claim otherwise.
Goldberg also called on the adult Internet as a whole to spend a little less time bickering over Acacia and other potential pressure-point issues and a little more time coming together to solve mutual problems.
"This is our wakeup call," Goldberg said of the affiliate/linker letters and the rumormongering sweeping around several adult Webmaster boards. "This is our opportunity to get together, so when the next guys come along we'll be ready for them, too. I don't feel like we're a fragmented industry, we should all work together even when we're competitors. At the end of the day, everybody's affected."
