The Good War: Porn vs. Piracy
By Marc J. Randazza
YNOT – The adult entertainment industry’s anti-piracy campaign is a just cause. It must not succumb to the temptation to conduct it the wrong way.
It is old news that online content theft is taking its toll on the entertainment industry. It is also old news that some copyright owners, notably the Recording Industry Association of America and the Motion Picture Association of America, addressed this problem with what some would call heavy-handed tactics, which did little to help the music and movie industries’ public image.
Although the porn industry frequently leads the way for broader technological innovation, it is way behind in the war on content theft. While the record and movie industries had their attorneys and lobbyists working on their behalf, the fragmented and independent-minded porn industry only now has begun to engage in cooperative efforts to treat and prevent the wounds inflicted upon it. The porn industry is waking up to find its arm gnawed off by an army of insects. In its desperation to stop the bleeding, it is not necessarily using its best judgment.
As the industry moves to cope with the scourge of content theft, it must remember that this is not the mainstream entertainment business, and it must remind the public of that fact, as well.
Porn is different from mainstream entertainment
In 2000, when online piracy first became a huge issue, Courtney Love presented an eloquent defense of file sharing, essentially backing up the argument that many online copyright thieves employ: When one steals music online, he’s not really stealing from the “little guy” musician. Instead, he’s stealing from the fat pig record companies. We must agree with that as a factual statement, while still maintaining that whether one steals from a billion-dollar company or a mom-and-pop grocery store, he is still a thief, and stealing is wrong.
Nevertheless, this view does add a certain dose of a moral authority to the argument that sharing music online doesn’t actually hurt any worthy parties. (I am not entirely persuaded of that, but I respect the argument.)
When it comes to porn companies, while the entire industry brings in a couple billion dollars a year, it is by no means as large as many people like to think. Forbes breaks down the revenues here. But, when you cut up that porn pie, you will see that many of the slices are diet-sized. Given the niche nature of porn, most porn DVD titles sell only a thousand or so units. When someone steals a Metallica song, they may contribute to a large aggregate loss for the record company, but the individual theft doesn’t really change the record label’s bottom line, nor does it cost Metallica one ounce of the fuel for its band jet.
On the other hand, when someone steals a single porn movie, they may have stolen a significant portion of that movie’s sales. And those thefts are from companies that actually crank out DVDs (as opposed to web-only content), which tend to be the larger producers. To put it in perspective, if you stole a single copy of an average porn DVD, you would have to steal a truck with 3,000 copies of The Hurt Locker to do the same amount of financial damage. While that doesn’t make it any less wrong to steal a copy of The Hurt Locker, you probably have more sympathy for a guy who shoplifts one DVD as opposed to stealing a truck loaded with 3,000 of them.
Aside from a handful of market leaders, most internet porn companies are smaller businesses than a local hardware store, and often they are run by the very people on screen. When you steal Mission Impossible, it doesn’t really take much money from Tom Cruise. When you steal porn, it usually has an immediate and measurable negative impact on the actors, director and producer. With the current degree of online piracy, most adult studios’ profits are down 60 percent. Scene fees are down, so actors are suffering as well. Employees are being laid off.
The fact is, while online piracy is cutting into the value of shares in record companies, that same kind of theft is actually costing a lot of people their livelihood in the porn industry. Despite that fact, online content thieves are looting small porn studios with the same level of depravity as they are stealing from the big multinational mainstream entertainment companies. Imagine if your local, family-owned hardware store and your city’s Home Depot both were hit by the same number of shoplifters every day. That is what is happening to the porn industry.
The porn industry’s place in society
The porn industry must remember that it is one of the guardians of freedom in this country. Think about how many important First Amendment cases have reached appellate courts and even the Supreme Court bankrolled by the adult entertainment industry. Think of the adult entertainment awards shows, where everyone stands and sings the national anthem at the top of their lungs. As the adult entertainment industry fights for its survival, it has to remember what it is. This is not just a business. This industry has long stood guard on the wall protecting our beloved U.S. Constitution, even at times when the rest of society remained servile and unquestioning. The fact is, if you are in this business, you don’t just make “dirty movies.” You are an obstacle in the way of tyranny.
With that in mind, the industry should not simply lie down and let its losses destroy it. While the porn industry is the First Amendment’s personal bodyguard, it is also a bastion of capitalism. An army runs on its stomach, and online content theft is doing to this industry what scumbags from Andrea Dworkin to Brent Ward could not do: actually threaten its very existence.
This combination of capitalism and constitutional protection has not simply benefitted porn’s fans. Weighing social and technological advances together, the adult industry’s impact on American culture has been second only to NASA’s. In the 1980s, porn’s preference for VHS over Sony’s Betamax ended the home-video format war. In the 1990s, pornography was at the spearhead of internet development both in terms of technology and business models, designing affiliate programs and billing services at the same time it pushed for video, audio and more efficient photo services. If you watch any video online, thank the porn industry. In fact, if you use the World Wide Web, thank the porn industry. While porn didn’t invent the internet, it certainly acted as the amniotic sac for the fetal web.
So how should the porn industry protect itself?
As the porn industry tries to stop the bleeding, it is being victimized a second time — by charlatans and unethical lawyers who prey upon this crime wave but who care little for the wreckage they leave in their wake. And who care nothing for the industry, its image or what remains of it when they are finished.
Today, porn companies are embracing mass copyright-infringement lawsuits, usually with studios filing suit against several thousand anonymous defendants at once. Paul Levy, an attorney for the Public Citizen Litigation Group (another guardian of liberty himself), and the Electronic Frontier Foundation (ditto) have come out publicly against these suits. Levy concerns and the EFF’s center on the difficulty of treating each case individually when filing a mass action, the likelihood of getting a quick — and unethical — settlement due to the embarrassment some associate with pornography, and the inequity of filing suit wherever a studio’s attorneys are located rather than where the harm occurred. In Levy’s words, if “you want to sue for copyright infringement, do it right.”
I respectfully disagree with Levy on some points, but his overall point, to “do it right,” is precisely correct. His concerns are well taken, and they should not be ignored. While the porn industry does need to step up its efforts to combat piracy, and it should not tie one hand behind its back when doing so, it should take Levy’s criticism as the voice of a philosophical ally — the industry’s conscience, if you will. The industry can keep its soul intact while protecting its bottom line.
One at a time or mass suits?
I disagree with Levy that the porn industry’s mass infringement suits should be brought one at a time. This model would be financially and administratively outrageous. Every case would cost $350 to file, would be separately numbered and tracked by the court with its own set of inflexible deadlines, and each motion would have to be tailored to that case … despite all of them relating to the same facts and legal questions. Court dockets would be overwhelmed, and each individual defendant would be so much more important that small settlement figures for anyone sued would be out of the question. To put it simply, if a porn company sues 100 thieves, it can settle with each of them for a small sum. If it sues one at a time, that unlucky one will need to pay much more. Even the defendants themselves should prefer to be part of a mass suit rather than risk the devastation that would come from being singled out.
Shaming and naming?
I partially agree with Levy on the embarrassment angle. Some attorneys have publicly bragged about using the embarrassing nature of some content in order to extract larger settlements. Not only is this unethical, but it also is utterly stupid. Any studio that uses this tactic to extract a settlement from someone should not be surprised if one of its victims winds up as a witness in an obscenity prosecution. Imagine a prosecutor in Bibleburg, Miss., stating, “Ladies and gentlemen of the jury, this studio thought its content was so shameful that it demanded a big check from this witness, but it ain’t so shameful that they are embarrassed to sell it in our fine city.” Good luck arguing your way out of that one.
The adult entertainment industry strives to be transparent and ethical, proud of free expression and refuting the ugly lies that there is anything wrong with its content. A studio playing off someone’s fear of exposure of the content itself, not the theft, is doing a disservice to the industry and itself. While no content producer would find that acceptable, some attorneys might.
The best way to circumvent this problem is for content producers to do a little homework on their attorneys. Are they committed to free speech? Or did they flop in some other area of law, and this is their first industry case, and they see your case as a way to make an easy buck without concern for your long-range interests and without regard for their own industry’s ethical standards. For an attorney to prey off someone’s shame in order to achieve a settlement — while hurting his or her client’s interests in the process — is the equivalent of skinning a buffalo and leaving the carcass to rot in a field.
There is always an element of shame when you steal something, and the adult entertainment business has always had a little fun with that. For example, walk into any porn store, and you’ll likely find Polaroids of people employees caught shoplifting, with a description of what they tried to steal. I don’t think the porn companies have any duty to protect any thief’s sensibilities.
I also think there is nothing shameful about any content — gay, straight, tranny, midget or otherwise. So, if a defendant is worried about their content selection choices becoming public, well, they should have thought of that before they stole it. Otherwise, they should be proud of their peccadilloes.
On the other hand, I think lawyers who use shaming as the point of their sword should be run out of the industry and should have their asses kicked by Levy and the EFF. When attorneys prey on shame, they send the message that there is something shameful about their clients’ First Amendment-protected content — which there isn’t. Furthermore, they are setting up their clients as easy targets in an obscenity case.
If your lawyer doesn’t represent you ethically, think of what will happen later when your lawyer’s greed conflicts with your best interests.
Jurisdiction does matter
Finally, I don’t disagree with Levy on the issue of filing suit solely where a content producer’s lawyers are located. Levy advises to “ring those claims in the jurisdictions where you have reason to believe [the alleged infringers] live [based on their IP addresses compared with a geo-location database].” Hauling defendants into jurisdictions where no damage occurred is a very questionable tactic and one that can backfire. Claims can be brought properly where the defendant lives or where the content owner is located. What Levy disapproves of, and I agree is poor practice, is just filing a lawsuit anywhere you can.
For example, in the Seventh Circuit, the “prevailing party” in copyright litigation is presumptively entitled to reimbursement of attorney’s fees under 17 U.S.C. § 505, and winning a motion to dismiss for lack of jurisdiction can make you a “prevailing party” there. So, if you were to file suit in Chicago when neither you nor the defendant had any connection to that jurisdiction, the defendant most certainly would win a motion to dismiss for lack of personal jurisdiction. If that happened, the studio likely would wind up paying the crook’s attorneys’ fees. That seems quite counterproductive, to say the least.
Conclusion
Everyone in the business agrees that adult entertainment studios need to protect their bottom line. At the same time, the porn industry needs to remind the market that it is an engine for innovation, and thus is deserving of its profits. At the same time, the porn industry needs to remember that it is a guardian of freedom, and it should not sully its hands with questionable tactics or unethical means of achieving its ultimate goals.
I believe the industry can protect its rights and keep its hands clean, but doing so will mean listening to its critics and being wary of charlatans who bang down its doors selling quick fixes.
Marc J. Randazza is the founding partner of the Randazza Legal Group, a law practice specializing in First Amendment issues, copyright and trademark protection, defamation, domain-name disputes and employment matters. The firm maintains offices in California, Florida, Nevada and Ontario.