By Marc J. Randazza and J. Malcom DeVoy
YNOT – Anyone with any degree of familiarity with the adult entertainment industry knows the toll online copyright infringement has taken on the industry’s bottom line. The frustration and anger is palpable. Producers go through the trouble of recruiting talent, filming the content and complying with recordkeeping laws, and within minutes of posting their latest updates, the content winds up being distributed for free on forums, tube sites and one-click hosting sites.
When you write to these theft-harbor sites to complain, they give you a sarcastic smile and say, “Our content is user-generated.” Then they take down the clips … but the next day, there they are again. You say, “User-generated, my ass.”
The next time you see a tube site or other “user-generated content” site with your content on it, visit the U.S. copyright office’s website and see if the offending site has a Digital Millennium Copyright Act agent. If it doesn’t, and you have bothered to register the copyright on your content, then you have a pretty clear shot at winning a copyright-infringement suit against the website operator.
Many tube-site operators believe that just registering a DMCA agent is enough to give them immunity from your infringement lawsuit. This is not the case. Among other requirements of the law, the tube-site operator must have a reasonable policy for terminating the accounts of repeat infringers.
The best way to attack infringement, especially on a site that you know is merely burying its head in the sand, is to send one link, per DMCA notice, via fax or email as a PDF so that the website operator has to enter each URL by hand. We have received emails from pissed-off theft-site operators, crying that it is very inconvenient for them to handle DMCA complaints in this format. Our reply? “It is not as much of a pain in the ass as my client finding his property stolen on your website, with you making a profit off of it.”
Additionally, when you see stolen content online, don’t just send a DMCA notice to the website operator. You should send the notice to the website’s hosting company as well. Some website operators discourage this because they don’t want their hosts to identify them as a “repeat infringer.”
Once a repeat infringer is identified, the content producer should send a termination request to the company hosting the infringing content. Under 17 U.S.C. § 512(i)(1)(A), online service providers are immune from liability for copyright infringement only so long as they have implemented and informed subscribers of a policy providing for the termination of accounts belonging to serial infringers. Even if a service provider has such a policy in place, it must actually terminate repeat infringers in order to be considered to be “implementing” it. If a site fails to take these steps, it may be sued rather than the individual infringer — and it will probably have a fatter, and more easily accessible, bank account.
Litigation is costly, though, and the more immediate concern is stopping the bleeding of the wound created by copyright infringement. A repeat-infringer notice should reference the above-cited portion of the DMCA, § 512(i)(1)(A) and demand that the offending account be terminated to preserve the service provider’s immunity under U.S. copyright laws. The termination letter should include the URLs of existing multiple infringements and be accompanied by prior DMCA take-down notices to show that this is a repeat problem for the affected account (yet another good reason to keep records of DMCA take-down notices).
Because a failure to comply with this law leads to the site being liable for copyright infringement, webmasters generally will terminate the offending account. If they don’t, they can be sued for copyright infringement as if site itself, not just the contributing user, had pirated the copyrighted material. In most circumstances, holding the site accountable is the only way to stop theft anyhow —so let the service providers do the work of putting their own heads on the chopping block.
Marc Randazza and Malcom DeVoy are partners with 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.
