AN AGE-OLD PROBLEM
Shortly after the creation of motion pictures, subtitles for the silent movies of David Wark Griffith contained dialogue and plot info, as well as his initials, "DWG." The director of 1915s civil war hit The Birth of a Nation, was, of course, trying to protect his intellectual property from theft.
Even in the 1910s, copyright infringement was an important issue for mass media producers. Nevertheless, Griffith was the victim of one of the biggest cases of intellectual property theft ever. Intolerance, his 1916 big budget anti-war epic, flopped in America and other countries engulfed by World War I - except for the new Soviet Union, which had a receptive audience.
Unfortunately, Bolsheviks did not honor international copyright or pay royalties, and Griffith lost all the profits he'd made from Birth's boffo box office, and invested in Intolerance. Griffith, who died broke in 1948, would almost surely be stunned by today's high tech computerized media. He'd also likely be surprised by the fact that copyright infringement is not only still with us, but costs the adult Internet industry as much as an estimated $50 million per year - probably more than Hollywood's annual gross when Griffith started shooting there.
Attorney Steven Workman, who represents 30 to 40 clients in the adult Internet business, including content providers and Webmasters, states "Copyright is obviously of immense concern to them. Because when you spend your hard-earned revenues to improve your Website by obtaining additional content, that's how you earn your living, by people clicking on and taking a look at the pictures and videos you shot. And it's all too easy to cut and paste and download files on the Internet. Copyright infringement has never been so easy."
Piracy, plagiarism, and theft of intellectual property are, like Intolerance's theme of man's inhumanity to man, a problem for the Ages, intensified in our era by sophisticated technology.
COPYRIGHT 101
In The Writer Got Screwed (but didn't have to), A Guide to the Legal and Business Practices of Writing for the Entertainment Industry, Brooke Wharton writes "Copyright is the Federal and international law that allows the makers of creative works to have exclusive rights in their creation for a limited period" - generally, the life of the author plus 50 years.
According to Workman, these include the rights to "reproduce copies of the work; distribute copies of the work; prepare derivative works based on the original work [and] perform [and] display the work publicly."
Adds Workman, "Copyright is a Federal statute set forth in Title 17 of the U.S. Code... It contains the full panoply of rights, remedies, protections, requirements, prerequisites, etc., attending to copyright.
"I always tell my clients this, and it takes a long time to sink in: Content providers have got to register the images, their photos, videos, audio, with the U.S. Copyright Office [in Washington, D.C.]," Workman continues, "because if you don't register, your remedies, when it comes time to sue are very limited... What you want to have, to swing as a very big club, are statutory damages, which are up to $100,000 per act of willful infringement... I can argue that one act could be distribution to one member of your Website."
Wharton writes, "If you did not register your work within five years and then register when suing for... infringement, it is more difficult to establish that the copyright is legitimate.
If you register within three months of publication of your work or before infringement... has occurred, you can collect, among other things, attorney fees (which can be very high)...
Registration is the best public record of your copyright claim."
"Copyright is automatic," says Workman, adding "you don't have to register to obtain copyright, you have to register in order to get these additional remedies... And if you're a U.S. citizen, you have to register as a prerequisite to filing a lawsuit for infringement. If you're a foreign national, you don't need to register as a prerequisite for litigation. But you do, here.
"It's important to know that the Berne Convention on Copyright has been adopted by the U.S. Congress, and so we are now signatories," he continues. "It makes it simpler for a U.S. copyright author to get relief in foreign countries, and visa versa, easier for a foreign author to obtain relief in the United States." Once one obtains U.S. copyright protection, obtaining the global copyright guarantees of the Berne Convention, an international treaty signed by most developed nations, does not require a separate, additional registration.
Gregory Clayman, acting president of VS Media, Inc., which produces 234 hours of Video Streaming daily, says three of the top-offending nations are Brazil, Australia, and, interestingly, Russia - Griffith's old nemesis.
According to Workman, registering for a U.S. copyright can be done "in a collection fashion, where you get all your pics on one CD. It won't be that expensive, and it will really, really give you a much greater leverage in the event you find someone infringing." The cost is $30. He adds that copyright infringement is a species of tort law, and that 1998's Digital Millenium Copyright Act has had the affect of altering traditional notions of third-party liability for theft of intellectual property on the Net. Says Workman, "The rules are the same for copyrighting books, films, or the Net."
VS Media's Clayman agrees. "To us, [the law] is the same," he says. "Once we own content and it is copywritten, just like a newspaper ad or anything like that, if you... just take it and resell it without the permission of the creator, the originator, the owner of the content, that's thievery."
OBSCENITY LAWS AND COPYRIGHT
However, obscenity laws may be an exception for some adult content on the Net. Due to some puritans who remain ever fearful that someone, somewhere, is having fun, so-called "decency standards" have dogged authors such as Henry Miller (his novel Tropic of Cancer could not be published in the United States until a major trial in the 1960s), and filmmakers such as Otto Preminger (his 1953 The Moon is Blue sparked controversy for the use of words such as "virgin" and "pregnant," and was released minus a Production Code Seal of Approval).
Alleged obscenity can pose special problems for adult Webmasters, content providers, etc. "Obscenity is a very squishy look and feel test that varies from jurisdiction to jurisdiction," says Workman. "In some states [it's] statewide, in some states it's county to county... Obscenity is simply [defined as]... those images which are not 'deserving' of protection under the First Amendment, because they are devoid of artistic merit, or cultural merit, and are offensive to the sensibilities of the community," and have, as the old saying goes, "no redeeming social value."
However, Workman states that no matter how "raunchy" material may be, "the Copyright Office is not concerned with the scandalous nature of the photographs or the video. The Copyright Office is only concerned with one thing: whether it meets the requirements of copyrightability as defined in the act... It's a very low threshold. Creativity is, surprisingly, not really a consideration. It's whether the work is original to the author."
STEAL THIS WEBSITE
In the early 1970s, activist Abbie Hoffman wrote Steal This Book. If the Yippie were alive today, he'd probably have a Website, and might call it Steal this Website.com?.
Colin Rowntree, editor of Wasteland publications, a group of Websites specializing in BDSM, has 11 sites featuring video feeds and video conferencing rooms, and 150 free Websites. He calculates annual adult Internet losses as follows: A legit free sex site costs about $5,000 per year to run. But most free sites are illicit (about 100,000 by Rowntree's estimate) and are run to receive ad revenue from pay sites. Multiply $5,000 per site by 100,000 sites and theft from adult Net actresses, actors, models, image distributors, photographers, etc. reaches $50 million - which Rowntree considers to be a "conservative" figure. "The value of their product is cheapened because it's everywhere, overexposed. That's the real damage that happens to adult Website owners... when their images get hacked, they're no longer unique," he complains.
"In the broadest sense, the Internet is a copyright infringement nightmare," Rowntree says. "There's any number of forms of information, be it text, still images, or moving pictures, which are put in a medium which can not be protected from theft and republication. So, ever since the Internet first started out, when [my company] first started in 1994, the few adult entertainment sites that existed went about putting their sites together by going around and stealing things from one another. Because they were not image distributors at that point, there was very little known about copyright protection of the images... As time went on, it became quite obvious that that was not a really good way to be doing business, because, indeed, there is no such thing as public domain of photography, in general."
Sexxy Software President Dennis Kaye told AVN Online that in the early days of the adult Net, Playboy and Penthouse sued many CD-ROM publishers because the magazines' copyrighted pictures were used illegally, after centerfolds and the like were scanned and uploaded to News Groups and other sites on the Net.
Rowntree, who is a Trustee of United Adult Sites (UAS), a lobbying group and coalition for the adult Webmaster community in Washington, says, "The people who were getting into it in a serious way, as far as a businesslike and professional manner, began to shoot their own content or several small shops popped up to meet the need for lots of fresh images. Probably the first batch of large numbers of pictures that were licensed came from the adult film industry, where it became common practice to always have a photographer on set. Those were picked up by a number of small but growing, and now huge, image distributors."
However, Rowntree maintains "copyright infringement continues to be a real problem in the absence of any real, effective way to trace down your intellectual property... which you're putting on the Web. It's very easy for a person who's running a small, free site, or just Joe Blow... to go log into a site, or if it's a free site, just right click on that picture and save, and it's on his drive. And then if he wants to break the law, and put it up, as far as something which he hasn't paid for, nor has model release agreements backing him up and no license... As you go through the Internet, you just see tons and tons and tons of things that were pulled off the News Groups - the News Groups are probably the worst offending place for copyright intellectual property violation - there are literally hundreds and hundreds of binary news groups... where there are people who post. That's what they do. They to go to sites every night or all day, it's like a hobby, like people who collect trading cards. They download images and they shoot them onto News Groups."
Credit card fraud is another problem, says VS Media's Clayman, although piracy is the most cited problem. According to Workman, one problem that is really unique to the Internet is how difficult it is to track down thieves, at least on occasion. "For instance, if you have a Website that contains pirated, that is, stolen images, that's copyright infringement because they don't have a right to post those images," he says. "Under the copyright laws, you can only publish or distribute images which you have obtained a license for, ownership to do so...
"Pirate sites give fraudulent info to Network Solutions, or set up operations in a foreign country, so it looks as if they are outside the U.S.," says Workman. "But they really aren't - it's hard to track them down. Or they just have false info altogether, and you don't know who you're dealing with."
The adult Internet is not the only media source being pirated. As in the days of Griffith, theft of imagery remains an unresolved issue for the film industry. Technological advances further improve quality and facilitate pirating in all media. According to Rowntree, bootlegged Video CDs and DVDs containing digitally compressed full-length movies, are for sale illegally on the Web. Rowntree claims he saw pirated copies of Austin Powers: The Spy Who Shagged Me and The Blair Witch Project posted for sale before they were released theatrically, as well as American Pie and The Matrix. Bootlegged copies of Star Wars, Episode I: The Phantom Menace prompted an FBI investigation when they appeared for sale on the Net on May 19, the same day the film premiered in theaters. Similarly, many claim the new MPEG-3 digital technology is allowing the music industry to be ripped off on the Net.
"[Unauthorized] celebrity sites is where wholesale theft is going on: big business," asserts Rowntree. "They're extremely lucrative, profitable sites, and they're also extremely illegal." These sites, which are typically run by fans, often feature actual nude pictures of stars or, in some cases, photos that have been doctored to appear as though the star(s) posed nude. "As the industry grows and the money is there, people will do this," laments Rowntree. "And there's just very little we can do to stop it."
ELECTRONIC BLOODHOUNDS AND DIGITIAL WATERMARKING: SOLUTIONS?
In addition to suing and sending out cease and desist letters to suspected offenders, Webmasters, et al, don't have to be passive victims, and have some options for protecting their rights. Technological advances can also aid legit adult Net content providers, and they can aggressively protect their intellectual property rights.
UAS Trustee Rowntree says the group's www.uas.org site will help provide information regarding infringement. "If someone steals your images... they're often times sitting on someone else's server. That becomes a violation of the terms of service for using their server. So what Mark Tiarra or UAS will generally do is call the Service Provider that's providing the hosting for that company, and have the Website shut down."
The Association for the Protection of Internet Copyright (APIC) is an organization dedicated to the protection of copyrights for photographers in the adult industry. APIC acts as an "electronic bloodhound," tracking down copyright offenders on the Net. "They're very helpful, to myself and my clients," offers Rowntree.
Rowntree also says that offenders can be sent cease and desist letters, although offering them a deal - typically, comp use of material in exchange for the free sites sending Webmasters traffic - is more effective. "There are new technologies out there that are becoming better for protecting your intellectual property," he adds. "For images, there are now embedded, encrypted keys which can be actually placed invisibly inside the image. And there are... search services, where they'll basically spider the entire Internet for a month looking for these keys. Then they'll send you back a report where these Websites are appearing."
"The amount of money that changes hands in [the Adult Net industry] is phenomenal," emphasized the CEO of the Webmasters' resources organization Netpond, who identified himself as "Nick." "Netpond has been encouraging all independent Webmasters to treat this seriously as a business. Our slogan is: 'Netpond means business.' It is time to pay your taxes, get accountants, get legal advice, to incorporate. The days of running your site as a hobby are long gone. The time to treat it as if it's a business run by computer nerds is long gone."
Producers of Internet adult material have come full circle since the nickelodeon days, when D.W. Griffith would brand his titles with "DWG," to protect ownership his films. Today, almost a century after Griffith started making movies, some adult producers are resorting to a high tech version of what the great American director did, via digital watermarking.
Says Workman, "It's a good idea to watermark or otherwise encrypt, or make any sort of electronic markings on a picture, an image, a graphic, anything, to identify it as yours. Absolutely; it makes proof of infringement all that much easier." But VS Media's Clayman is concerned that digital watermarking visible to the naked eye interferes with imagery, and he cautions, "I don't know how much that technology deters thieves, because there's so much blatant, blatant, blatant infringement on the Internet. A lot of these people just assume that it's going to be too expensive to catch them."
