LOS ANGELES, CA — Vivid Entertainment Group has filed a lawsuit alleging Adult Entertainment Broadcast Network (AEBN) and related companies “unlawful[ly] post[ed] or allow[ed] third parties to post copyrighted Vivid content” to AEBN-owned PornoTube.com.In addition, the suit alleges PornoTube consistently and intentionally fails to comply with provisions of the federal Child Protection and Obscenity Enforcement Act (18 U.S.C. §2257 and related legislation) that require proving and documenting the age of performers in sexually explicit content.
The suit, filed Monday in the U.S. District Court for the Central District of California, names Data Conversions Inc., which does business as AEBN and PornoTube.com, and also WMM LLC, which also owns and/or operates PornoTube.
PornoTube is a free website featuring a variety of sexually explicit material posted by its community of users.
Vivid requested a jury hear its claims that the defendants “have used technological advancements to willfully infringe copyrights belonging to [Vivid], depriving [Vivid] of the lawful rewards that accompany creativity, effort and innovation.” The suit contends the “defendants’ business plan depends on the uploading, posting, display and performance of copyrighted audio-visual works belonging to Vivid and others,” and the defendants “knowingly built a library of infringing works to draw Internet traffic” to PornoTube.
Noting that the Digital Millennium Copyright Act provides for damages up to $150,000 for each willfully infringed work, Vivid also contends PornoTube’s infringement causes “great and irreparable injury that cannot fully be compensated or measured in money.” The suit asks for a permanent injunction to bar future infringement and damages of at least $4.5 million.
Loss of revenue among traditional San Fernando Valley adult entertainment companies is epidemic, dropping in some cases by as much as 50-percent from its peak, estimated at a global total of about $12 billion annually. Vivid and other adult companies that saw their rise to prominence during the home-video age blame new technologies and shifting consumer mindsets about porn’s place in society for much of the revenue decline. Some, like Vivid, have replaced their brick-and-mortar losses with digital-distribution efforts of their own, but the explosion of free and user-submitted content on the Web — particularly on sites like PornoTube, Xtube, YouPorn and others — continues to present challenges not only to traditionalists, but also to adult-content producers who made their debuts online.
The experience for porn producers isn’t unlike what music and mainstream Hollywood have been fighting in the courts for several years. The copyright portion of the Vivid suit is similar to a $1 billion suit filed last March by Viacom against YouTube, the mainstream site of which PornoTube is an erotically charged knockoff. Viacom, the owner of MTV and Nickelodeon, accused YouTube of “massive intentional copyright infringement” by allowing 160,000 unauthorized Viacom clips to be uploaded to YouTube. The case currently is before the U.S. District Court for the Southern District of New York. The outcome of that case — and the one Vivid filed Monday — may help to decide one of the most hotly debated issues surrounding so-called “tube” sites in adult and the mainstream: whether they will be granted the same sort of “safe harbor” protections internet service providers, online forums and some other publishing venues enjoy as “free-speech vehicles” for their users. One prevailing school of thought holds that as long as a website doesn’t “edit” the user-submitted content — by changing its format or manipulating its content, for example — it is reasonably immune from prosecution for contributory copyright infringement.
“Vivid should not have to take responsibility for policing PornoTube on a minute-by-minute basis to protect its rights,” said attorney Paul Cambria, who is representing Vivid in the suit. “Vivid has already found dozens of violations of its copyrights, and AEBN needs to know that it cannot continue pilfering Vivid’s products no matter how they might reformat or reshape it. Once they put up any material on their site and fit it into their format, they are no longer just a ‘pass through’ medium — they have become producers or distributors under the law.”
In addition to its copyright-infringement claims, Vivid also requests damages for willful and fraudulent “misappropriation of the actors’ right of publicity” under California law, as well as for “unfair business practices for unauthorized copying, reproducing, distributing and selling Vivid content.” It is Vivid’s contention that PornoTube also violates California law and engages in unfair business practices by not following 2257’s labeling requirements.
“PornoTube and AEBN have exactly the same responsibility as any other adult content distributor or producer to obey U.S. copyright laws and 2257 regulations,” Vivid Co-chairman Steven Hirsch said. “Vivid spends enormous sums to copyright its content and to comply with the Child Protection and Obscenity Enforcement Act age verification process. PornoTube and AEBN have been getting away with a practice that unlawfully earns it millions of dollars at our expense.”
Cambria added, “This action against PornoTube is groundbreaking. AEBN and PornoTube are not exempt from their responsibility to comply with 2257 rules, and we will demonstrate in court that they are obtaining an unfair business advantage by violating this obligation.”
An AEBN spokeswoman told YNOT it is company policy not to comment on pending litigation.
Vivid’s lawsuit may represent the tip of the iceberg, as talk has spread within the industry for at least the past six months about how to deal with PornoTube and its brethren, as well as a host of other piracy vehicles online. Does one attempt to beat them, join them or work around or with them?
“We’ve decided to take a stand and say ‘no more,’” Hirsch told The Sydney [Australia] Morning Herald. “We will go after all the free sites.”
