Pink Visual President Allison Vivas told XBIZ that DMCA takedown notifications have always been just one tool for copyright holders to use — not a complete solution for deterring or preventing infringement in any content-driven industry, porn or Hollywood.
“It’s also a tool that rights-holders need to understand when and how to use, in order to make effective use of other elements of copyright law to enforce their intellectual property rights,” Vivas commented. “It’s also true that there are several prerequisites that have to be satisfied before a user-generated content site is eligible to receive safe harbor under the DMCA, so there is more to compliance than taking down content in response to a take-down notice — something I think the adult entertainment industry as a whole was a bit slow to realize.”
Part of this need for continuing education on the subject is the realization that for consumers, the consumption of free porn via tube and file locker sites has some tangible advantages, explains Doug Lichtman, a UCLA professor who focuses his teaching and research on topics that relate to law and technology.
“The biggest challenge for adult content,” Lichtman told XBIZ, “is the reality that pirated material is ironically better than legitimate material. To access legitimate material, a user has to identify himself by subscribing and paying,” Lichtman said. “[Accessing] pirated material, by contrast, can be fully anonymous.”
In an age of rampant identity theft and global concerns over censorship, the importance of this factor shouldn’t be underestimated.
“That disparity exerts enormous pressure on the market,” Lichtman explained, noting that this influence “distinguishes adult content from other forms of vulnerable content, where piracy has been at least partially displaced by the provision of high-quality, consumer-friendly legitimate content.”
Faced with this, many adult entertainment companies are seeking an alternative method of addressing lost revenues and brand confusion; such as high-profile lawsuits designed to put pressure on piracy scofflaws — including suits pursuing individual downloaders who may be difficult to personally identify due to restrictions within the DMCA.
Chad Belville, an industry attorney who has represented scores of adult entertainment companies in piracy cases, puts his views squarely on the table.
“The DMCA is one of the most fucked up pieces of legislation affecting the industry, second only to the labyrinth of 2257,” said Belville, who has filed dozens of suits against tube sites on behalf of Private Media Group’s Fraserside unit, Kink.com and Zero Tolerance.
“The DMCA had good intentions,” Belville told XBIZ. “But in the real world, it makes enforcement of copyright more difficult by giving some cover and defense to operators that are intentionally infringing on the hard work of legitimate producers.”
As for finding a solution, Piccionelli says that there needs to be more work done on DMCA, in order to shore up all of the dents and bruises it has inflicted on the porn biz.
“The only thing more shameful and disgraceful than Congress’ half-baked passage of the DMCA is its failure to address its shortcomings after more than a decade,” Piccionelli said.
Recent court decisions, however, could signal an impending change for the DMCA.
The 2nd U.S. Circuit Court of Appeals recently rendered what may be a crucial decision in the long-running Viacom vs. YouTube lawsuit — a decision that may impact DMCA’s future. While the 2nd Circuit sent much of the case back to a New York trial court for more litigation, many portions of its recent decision, such as those concerning the knowledge required to find copyright infringement, may have consequences for UGC sites, including tubes and file lockers.
For example, the 2nd Circuit vacated a lower court’s order finding that YouTube needed to have item-specific actual knowledge of infringement in order to have the “right and ability” to control infringing content. With the decision, the 2nd Circuit opened the door for operators who know that some infringement occurs on their site, but then claim not to know which specific files are infringing, to be held liable for that infringement — regardless of their level of knowledge.
Because the 2nd Circuit remanded a substantial portion of the case to the federal court in New York, the Viacom case is still far from done.
“For the time being, however, one of the leading decisions suggesting that user-generated content service operators could not be liable for copyright infringement without item-specific knowledge of infringement has been vacated,” attorney J. Malcolm DeVoy of Randazza Legal Group recently wrote in an article on the suit.
“Although the trend for tube sites over the last several years has been to comply with the DMCA and license content, the standard for complying with the DMCA will likely increase with this decision,” DeVoy stated. “Simultaneously, content owners who seek to hold sites liable for infringement may have a means to do so if they can show service operators had some knowledge of infringement — even if it was not item-specific.”
The upshot is that a UGC site owner who knows one video clip was pirated should assume that all of them are pirated, and take systemic actions accordingly. Of course, this shifts the onus of copyright enforcement to site owners, while turning the presumption of innocence over into a presumption of guilt; a move that American lawmakers may find unconstitutional to implement.
But those issues will likely be decided by an army of attorneys, with any overall net benefit to copyright holders far from certain. One thing that is for certain, however, is that the DMCA is not effective at protecting the rights of American media businesses — porn studios included.
http://www.xbiz.com/news/151439