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AFF has no liability
AFF has no liability.
While their Terms of Use prohibit affiliates from advertising on websites that infringe on the rights of third parties, I will point out the following:
-AFF is under no obligation to enforce those Terms of Use
-AFF has the legal right to determine, in their sole discretion, who is in violation of those Terms of Use
-AFF has the legal right to determine what course of action they wish to take when discovering that an affiliate is in violation of the aforsaid Terms of Use, and therefore can be selective in the aforsaid enforcement
Moreover, AFF is not engaging in unfair business practises by selectively enforcing their Terms of Use as they have the legal right to do business with whom they please.
AFF doesn't derive revenue from the infringing content on Tube Sites - they derive revenue from individuals signing up for accounts. If we were to make an obscene argument, the Tube Sites indirectly derive revenue from infringing content - that is, they derive revenue from from individuals clicking on advertisments. And those individuals visit the Tube Sites partially to view infringing content.
The law says that if you infringe on copyrights you are liable. But the copyright holders want it to say, if you profit from the infringement of copyright, you are liable. And this is a slipperly slope, because everybody eventually becomes connected. For example, if you insist that AFF is liable because they advertise on Tube Sites, then couldn't the companies that provide web hosting to AFF be liable because the ads that AFF displays on the Tube Sites are hosted by them?
The DMCA says that an Online Service Provider is not liable for copyright infringement only if:
-they do not have actual knowledge that the material is infringing
-they are not aware of the facts/circumstances from which infringing activity is apparent
-not receive a financial benefit directly attributable to the infringing activity
Some Rights Owners CC the DMCA NOCI to AFF; therefore, AFF is aware that the Tube Sites are infringing on copyrights.
However, the term "directly attributable" is poorly defined. A web host that has users who are hosting infringing content is not receiving a financial benefit that is "directly attributable". But a web host that is allowing users to sell infringing material, and is taking a commission from the payments made for said infringing material is.
And the receipt of a financial benefit only applies in a situation where the service provider has the right and ability to control such activity. AFF has neither the right nor the ability to control the content on Tube Sites.
However, AFF is not an online service provider. Since they have no control of the content on Tube Sites, they cannot be obligated to remove it.
Realistically, nobody is going to sue AFF because it costs a lot of money, and AFF has much more money than the average porn producer (except maybe Vivid). AFF isn't going to allow you to crush their business model and can be expected to fight such a case with all of their resources.
Very likely, if a case like this ever presented itself, it would be dismissed upon Summary Judgement
-AFF doesn't control the material
-AFF doesn't receive a financial benefit
-AFF doesn't induce or encourage infringement (paying somebody ad revenue isn't considering an induction)
-The Court wouldn't like to set a precedent for the reasons described earlier
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