Slightly more than one year ago, on July 31, 1998, Color Climax Corporation, ApS of Copenhagen, Denmark and Digital Graphic Systems, AB of Stockholm, Sweden (administrator of the Color Climax Website) filed the first of what was planned to be a series of lawsuits against various Websites that had engaged in image piracy. The defendant, whose real name Color Climax chooses not to reveal, operated a site at www.bilesasylum.com, which sold a CD-ROM packed with Color Climax's works, and maintained a CRC list on its site which users with the correct software could use to compare their image collection with what was available on Bile's site, and download the ones they were missing. Bile also allegedly posted many Color Climax images to various newsgroups, all of which infringed on Color Climax's copyrights and trademarks.
"There was a newsgroup [in alt.binaries] that was strictly dedicated to the Color Climax works," company spokesman Tom Flies told AVN Online, "and all these folks would do is just trade images in there. It was essentially our entire productions that they had, and we've been in business for over 32 years.
"The straw that really broke it is that Bile at one point actually copied our entire Website and sold it on CD," Flies continued. "Then we had to buckle down and do something, but it was extremely hard and difficult to go after a newsgroup. We tried to contact the folks from major carriers like MCI, UUNet and so forth, but they are very reluctant to do anything. There's a big question mark with public domain and how to treat public domain, and the guidelines are very vague, even though the copyright law is very straightforward. As far as those folks are concerned, the news carriers, they are very reluctant; very.
"So what we ended up doing, we went after the most prominent poster in that newsgroup, which was Bile. He was from New York. We filed a direct lawsuit against him. We gave him several warnings. We told him we were going to file. He was kind of kidding around, and he didn't take it seriously. And we finally filed [a lawsuit] in District Court and we won. But we talked to Bile directly. We gave him a chance to get out. All we wanted was for him to stop and to put a public notice into the newsgroup that posting our images - that he was wrong on doing it. That's all we asked for." But Bile never responded to Color Climax's suit, and now bilesasylum.com is no more.
As of February 8, 1999, U.S. District Court Judge Ed Korman ordered Bile to turn over to Color Climax all records of income and other "gains" that Bile may have had from the production of its Color Climax CD-ROM; the media that Bile used to produce the disc; the customer list to whom Bile sold the disc... and ordered the cancellation of the domain name "bilesasylum.com."
While it's unclear just how much Color Climax has collected in money damages, the company considers Judge Korman's order to be a tremendous victory.
"I believe that this was a first, as far as legal judgment on the Internet is going, because actually we forced InterNIC... to [cancel] the domain name," Flies said.
But has the win stopped the piracy of Color Climax's images?
"Well, it slowed it down tremendously," Flies estimated. "About six months ago, the piracy had started flaring up again in that particular newsgroup, and we posted the judgment again, and people were really ticked off. They were saying, 'You folks make way too much money; I can't believe that you don't want to share the images.' You know, kind of the free attitude that's thriving right now in the newsgroups, but it stopped right away; they do take us seriously."
Another site that's preparing to take legal action is suze.net, the home of Suze Randall, who is perhaps the best-known photographer of glamour nudes in the U.S.
"There are two Suze Randall newsgroups that do nothing else except swap Suze Randall images, and I'm really pissed off with that," said Humphrey Knipe, Randall's business manager and husband. "But it's very hard to do anything about it. These people hide behind hotmail addresses and so forth, and so we are moving in that direction [legal action]. I mean, Suze Randall is the most pirated photographer on the Internet. You can ask anyone. Steve Easton of APIC keeps telling me that, and so do many other people. And certainly, if you look at these sites, you see Suze's images more than anyone else's; more than Playboy, in fact. So we are talking to attorneys about what to do. I mean, the ripoffs are so blatant!"
But while Knipe has had as much trouble policing the alt.binaries and other newsgroups as Color Climax (and hundreds of other site owners and content providers), one entity that really gets under his skin is the "free site networks."
"They are ripping us off blind," Knipe charged. "They're making millions and millions of dollars out of us, because basically, that is a totally fraudulent business plan. It's where somebody says, 'I'll host you for free as long as you put my banners at the top and the bottom of your page.' And they don't care at all what kind of content you put up there, and even if it's adult content. They don't require you to post S2257 notices, [though] they're perfectly aware that that's what the federal rules require. But these guys are just in it for the buck. They have thousands and thousands of sites in their programs, so they don't mind if I call them up and say, 'Hey, look, this particular site is full of our images.' They say, 'Oh, sorry; I'll take it down.' Because they know that you will never be able to shut them down. I mean, 10 sites, 20 sites, 50 sites a week they put up. You can close down maybe two or three. It means nothing. If you've got 5000, what does it matter if angry copyright owners close down two or three sites a week?
"The whole thing is based on theft," he continued. "There's no way in which these free site networks could exist without stolen property. How are these kids who are your Webmasters going to acquire or buy intellectual property? They're not going to do it. They know perfectly well that all the stuff on those free sites are stolen property. You can't just try and close them down, because they're compulsive Web builders, you know. But they have to realize that they're doing the wrong thing in the way they're going."
Adding to Knipe's frustration is what he sees as unreasonable recalcitrance on the part of some site hosts to investigate reports of image piracy.
"Some people are being real assholes, like [one free site host] whose lawyer sends you a form letter saying, 'Look, if you think there's stolen content on this site, you send us a notarized letter, proof of all your copyright notices' - in other words, all the things making it just impossible to do that, because you would be dealing with 10, 15, 20, 30, 50 sites, every single one full of pirated content. They charge people to get into a site that is full of my content. They don't police the content at all. They refuse to police the content. And if you tell them, 'Hey, that site is full of stolen content,' they tell you to take a walk. 'We have nothing to do with that.' It's rather like somebody, for example, selling tickets to a show which has illegal content, or taking money at the door of a warehouse that is full of stolen goods.
"What we're trying to do," Knipe stated, "and this is in conjunction with APIC, is to go after one big free site hoster and make an example of them. And if that works, if you win a judgment against those people, the others will be shaking in their shoes."
However, Randall and Knipe have an easier answer that both they and (they hope) the content thieves can live with.
"We do have a solution for these guys, and that is to join our PICS4CLICKS program. You take our pictures, put our banner up and send us back the traffic. If you do that, we give you a license, and we post you a S2257 notice and make you totally legal. We have over 1000 images in that bank, and the more legitimate of the free site hosting people have come to realize that this is the way to go. It's really working amazingly well."
However, the program still has a few obstacles to overcome.
"The thing is," Knipe explained, "we don't have the kind of tracking information so we can work out exactly where stuff comes from right now; we're waiting for that to be developed."
Knipe also refuses to deal with sites that contain any illegal content and those with multiple popup consoles or excessive marketing of teen pornography. But Knipe is generally very optimistic that the system will work.
"Our idea is not to go and crash all these little guys, but to give them a way of being legal. It's really working. It's a positive step instead of all the negativism of perpetual suing. But you have to have the carrot and the stick."
"People subscribe to our Website because we run a trustworthy operation," said Tom Flies, which seemed to echo some of Knipe's thoughts. "The trust of our subscribers has been earned by showing them that we take our business seriously; whether it is providing a discreet, quality service, or whether it is preserving the value of a membership by stopping the rampant distribution of our copyrighted works all over the Internet. We encourage people who have unlawful copies of our works to delete them. We will no longer tolerate any violations, and we are taking the protection of our intellectual property as seriously as any other part of the business Digital Graphic Systems and Color Climax have spent 32 years building."
