wootpr0n

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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sortie

Sorry, but why would we belive you?

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wootpr0n

Because I'm smarter than you.

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pocketkangaroo

I don't think you can make a judgment like that till a court case has been heart to set precedent. The closest we have gotten was the Gator case of years ago. Gator was scared enough about the result that they settled with the companies.

baddog

Like it or not, most of what he says is true.

sortie

So if their terms of service says they will keep my info private, according
to you they can post it on a webpage because the terms are not enforceable.

If they also say in the terms that I will get paid unless cheating, can they
not pay me because they are in a bad mood because their terms are
meaningless?

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L-Pink

What prompted you to share these unsolicited and biased legal tidbits?

wootpr0n

Which Gator lawsuit are you referring to?

I assume it is Six Continents vs Gator or some other Gator lawsuit

Gator had installed adware on people's computers that allowed it to replace ads on websites that are visited. It also displayed pop-ups. Publishers allege that the Gator software therefore infringes on copyright.

Realistically, it is tortious business interference, because Gator directly interferes with the relationship between a customer and the publisher's site.

It is not copyright infringement because the publisher's site is still being displayed, and the Gator software isn't "copying" it.

But in any regard, the publishers were suing Gator, an ad agency, and not the advertisers that entered into contracts with Gator to display the ads.

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crockett

I would imagine AFF wouldn't want to get involved in a law suite like that. Considering pretty much every profile used for advertisement is fake yet presented as "real". One could say they are defrauding their customer base by using fake profiles.

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wootpr0n

I didn't say that AFFs Terms of Use were meaningless. I said that AFF has the legal right to enforce their Terms of Use as they please.

Clauses in the Terms of Use can be divided into two categories
- Things that you are obligated to do
- Things that AFF is obligated to do

Ensuring that the websites where you post your ad aren't infringing is something that you are obligated to do. If you don't, then you are in violation. However, AFF has the legal right to not enforce such provisions if it sees fit.

Keeping your personal information private is something that AFF is obligated to do. The unauthorized disclosure of the aforsaid information would put them in violation of their contract with you and with applicable privacy laws.

If AFF decided not to pay you, despite your adherence to the Terms of Use, they would also have breeched their contract with you. However, as you are certainly aware, if AFF decided not to pay you because they were in a "bad mood," you would have little recourse. Unless you were earning tens of thousands of dollars per month, hiring an attorney to obtain those earnings would not be cost effective.

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Matt 26z

Nothing will ever happen to advertisers, and any webmaster who thinks otherwise is delirious. Besides, it would set an extremely dangerous precedent. You couldn't buy advertising anywhere unless you were 100% sure there was no copyright infringement anywhere on that site. Want to buy a banner spot on a TGP? You are getting sued if they post a submitted thumb that was stolen.

wootpr0n

That is a very creative argument, and certainly viable.

If you could convince some of the customers who signed up with AFF that they were tricked, then a class action lawsuit could be conceived. But it is a question of whether or not the profiles are a "material misrepresentation". AFF could argue that even if those fake profiles did exist, AFF never represented to you that one of those ladies would have had sex with you (a notion that itself borders on illegal).

However, in order to collect your damages from AFF in a class action, you will need class representatives - people who paid AFF and were tricked, and then anyone who wants to collect their share of damages at the end will have to have their name publically disclosed. How many people are willing to admit that they used Adult Friend Finder?

But the concern here isn't AFF itself, as it provides significant revenues to many legitimate adult websites. It is that AFF is advertising on Tube Sites and that their revenue is allowing Tube Sites to continue in a viable manner.

And AFF agreeing not to advertise on Tube Sites wouldn't make such an action go away.

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L-Pink

But in this case they are 100% sure there IS copyright abuse. That is the key to the tube sites success. Aff is banking on the fact that this blatant copyright abuse will draw viewers and a percentage of those viewers will buy AFF memberships.

sortie

If we assume:

- A website is a broadcast just like tv

Then according to your scenario :

- I can high jack a cable tv broadcast
- Re-broadcast is for free on open airways.
- Tell you that I stole the brodacast
- You pay me to run your commericals on the broadcast
- but you don't think you will go down with me for raketeering?

I don't think this is the case.

The fact that you KNOW the content is stolen seems to be a problem.

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sortie

Every single person who'd do a porn shoot for $500 and every single person
who thought they were getting $100k out of the settlement.

That's a lot of MoFos.

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pocketkangaroo

Sorry, I got things mixed up. I know Gator was involved in this but they weren't the ones sued. I'm thinking of the Weight Watchers vs DietWatch lawsuit in which Weight Watchers won. It wasn't a huge amount but shows there is some precedent for suing other companies.

wootpr0n

The people advertising on a stolen feed aren't going to get into trouble.

As I recall, racketeering is the business of obtaining money to provide a solution for a problem that the business itself causes. The advertiser who advertises on a stolen feed isn't the cause of the problem.

Moreover, if I didn't advertise on your stolen broadcast, your stolen broadcast would still exist.

And the Tube Sites aren't telling AFF that they are peddling in stolen content.

If you stole a cable broadcast and replaced the commercials, you wouldn't be engaging in copyright infringement either. This is because you are stealing the feed from the cable company, which doesn't own the copyrights to the broadcasts.

But you would be in trouble for signal theft.

And the television networks could also go after you for tortious business interference; you have replaced their advertisments, thereby affecting the relationship that they have with their customers.

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Socks

wootpr0n

Okay, I looked at this lawsuit, and its arguments still don't apply.

In Weight Watchers vs DietWatch:
-DietWatch contracted with ad agency Gator to display its ads
-Users who downloaded Gator software and visited the Weight Watchers saw a pop-up asking them to register for a diet program
-The pop-up directed users to register for a program run by DietWatch

So this isn't a copyright case. When a visitor goes to the Weight Watchers site and sees a DietWatch pop-up, DietWatch has deliberetly tricked that user and has materially affected the relationship between Weight Watchers and its visitors.

Diet Watch wasn't sued because it was legitimately advertising on a website that was infringing on someones copyright. It wasn't even sued for advertising on a website that engaged in some other tort or liability. So I can't see how it relates to Adult Friend Finder advertising on Tube Sites.

If AFF caused a sign-up box to pop-up when a user visits a rival dating site, and does so without the consent of that rival dating site, then this case would apply. But only maybe, because the Weight Watchers vs DietWatch was settled out of Court, so a legal decision was never issued.

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D

Interesting thread.

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Tempest

Vicarious infringement is a possibility..

mattz

Too long for me to read at the moment, but I do know AFF makes me good money.

Snake Doctor

This is exactly why a case has never been brought before the court, because the attorneys for the people having their copyrights infringed know this.

This is why some people are trying to work "with" the tube sites to protect their copyrights and make money at the same time, instead of starting a fight they cannot win.

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wootpr0n

In order for Vicarious Infringement to apply, the following must be true:
-The vicarious infringer must benefit financially from the infringement
-The vicarious infringer must be capable of controlling the direct infringer

In YouTube Inc., et. al. vs Viacom International, Inc., YouTube is a vicarious infringer because they benefit from the infringement through ad revenue. And they are capable of controlling the direct infringement because they can delete the videos that reside on their site.

However, this is only Viacom's argument and has not been decided by the Court. YouTube is likely to argue that they do not benefit from the infringement itself; they benefit from ad clicks.

In order to accuse AFF of vicarious infringement, you would have to argue that AFF is benefiting financially from it:
-This is a tricky argument and becomes a slipperly slope because you could argue the same about many companies. So how related AFF is to the infringement itself is questionable.

You would also have to argue that they are capable of controlling the infringement:
-They have no authority over the videos present on the Tube Sites
-You could argue that they are capable of controlling the Tube Sites because they are funding them.
-But the law says that they have to be capable of controlling the "direct infringer". The Tube Sites aren't direct infringers - the users who upload the videos are. And AFF isn't capable of controlling the Tube Site users.
-Moreover, it is not a very persuasive argument that AFF is capable of controlling the Tube Sites, because the Tube Sites have other revenue than that which is derived from AFF. A few charge monthly fees, and many others have advertising from a number of other companies, including Brazzers.

Speaking of which, I can't understand why people are complaining so much about AFF and completely ignoring Brazzers.

In fact, you have an even stronger argument against Brazzers. You still won't win, but at least with Brazzers you could argue unfair competition. They are advertising on websites that infringe on the copyrighted works of their competitors (other porn sites).

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tony286

time will tell

pocketkangaroo

The lawsuit showed you can sue a company for the practices used by the company they are advertising with.

Can you also show me where you got the information about the lawsuit? I'm pretty certain the lawsuit claimed that DietWatch was infringing on their trademarks and committing unlawful trade on their brand name.

Drake

Informative thread

wootpr0n

Well, you can sue the Tube Sites and accuse them of vicarious infringement.

Only one company has done this so far; Vivid.

But it costs a lot of money to hire an attorney for a case like this. So it is a waste of time and money.

Moreover, the Tube Sites can argue that they have immunity under the DMCA, and they do have immunity, even more than normal Tube Sites like YouTube.

This is because the Online Service Provider isn't liable unless they:
-don't respond to a NOCI
-are aware of the infringement
-are aware that the activities are likely to be infringing (this is a sticky point)

For YouTube, you can argue that they have the capability and the obligation to review every single video that is uploaded. The Courts are unlikely to buy this argument (an argument that Viacom is making), but if they did, then you could argue that YouTube can easily distinguish between clips that are from a movie or television show and those that are created by users.

For a porn Tube Site, you could argue that they have the capability and the obligation to review every single video that is uploaded. But it's not easy to identify which porn video is infringing and which video isn't:
-A lot of user generated porn is filmed like crap. But so is some "amateur" porn that is copyrighted.
-And some user generated porn looks good. In fact, impossible to distinguish from porn that is ripped from a DVD or a pay site.
-And some porn companies are out of business so nobody owns the copyright to their porn.
-Only a few porn sites watermark their videos (Brazzers for one, who also advertises on the Tube Sites), and none of the commercial videos are watermarked. Plus, watermarks can be cropped.

So if you run a porn site, you should watermark all of your videos all the way through. Then if somebody uploads them to a Tube Site, the Tube Site can't make the argument that they didn't know that the videos weren't copyrighted.

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wootpr0n

Well, you can sue the Tube Sites and accuse them of vicarious infringement.

Only one company has done this so far; Vivid.

But it costs a lot of money to hire an attorney for a case like this. So it is a waste of time and money.

Moreover, the Tube Sites can argue that they have immunity under the DMCA, and they do have immunity, even more than normal Tube Sites like YouTube.

This is because the Online Service Provider isn't liable unless they:
-don't respond to a NOCI
-are aware of the infringement
-are aware that the activities are likely to be infringing (this is a sticky point)

For YouTube, you can argue that they have the capability and the obligation to review every single video that is uploaded. The Courts are unlikely to buy this argument (an argument that Viacom is making), but if they did, then you could argue that YouTube can easily distinguish between clips that are from a movie or television show and those that are created by users.

For a porn Tube Site, you could argue that they have the capability and the obligation to review every single video that is uploaded. But it's not easy to identify which porn video is infringing and which video isn't:
-A lot of user generated porn is filmed like crap. But so is some "amateur" porn that is copyrighted.
-And some user generated porn looks good. In fact, impossible to distinguish from porn that is ripped from a DVD or a pay site.
-And some porn companies are out of business so nobody owns the copyright to their porn.
-Only a few porn sites watermark their videos (Brazzers for one, who also advertises on the Tube Sites), and none of the commercial videos are watermarked. Plus, watermarks can be cropped.

So if you run a porn site, you should watermark all of your videos all the way through. Then if somebody uploads them to a Tube Site, the Tube Site can't make the argument that they didn't know that the videos weren't copyrighted.

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tony286

Man lots of info and case reference, are you speaking for someone else? I dont care just curious.

L-Pink

"But it costs a lot of money to hire an attorney for a case like this. So it is a waste of time and money."

CyberHustler

sortie

Ok, you just convinced me that you don't know what the fuck you are talking about.

Copyright also controls broadcast rights. I can't re-broadcast a feed of
the lastest sitcoms from a high-jacked signal without violating the
broadcasting rights of the sitcoms themselves.

The sitcom owns the copyright which allows them to sell broadcasting rights
to the cable company. The sitcom didn't sell me broadcasting rights so
they can sue for copyright infringement if I broadcast it.

If this were not true then why all the fuss over youtube.
Users are just high-jacking tv signals and broadcasting them on youtube and
according to you, that's not copyright infringement.

If you are a lawyer then I advise you to quit.

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wootpr0n

Signal theft and copyright are two different things.

There are lots of people who steal a satellite signal for their personal use. Some of them are getting sued by the satellite companies for this. But none are getting sued by the television networks.

Copyright is the right to copy. When you steal a signal, it is already being broadcast, and you are providing them with the means to decrypt it. You haven't copied anything. Some people don't have cable television because they don't pay for it, but the signal is still coming through the wires to their house. It's still being broadcast. They just don't have permission to view it.

You say that "Users are just high-jacking (sic) tv signals and broadcasting them on youtube (sic) ." Well, actually I can't go to YouTube and watch a live television broadcast of anything. So do you mean to tell me that if somebody legitimately purchased cable service and made a copy of a show and posted it on YouTube, that would be okay? And Viacom is only suing YouTube because people are broadcasting CBS live 24/7 on YouTube?

And if this is the case, why aren't cable companies suing YouTube?

Have you even been to YouTube?

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sortie

Ok, you forced me.

So here it comes......

You are an idiot!


Please go to your proper forum : http://IwannabeSoMuchButIaint.com


The sattlelite customers are not re-broadcasting so the tv show can't sue
under copyright, but the sattlelite company sues the customer for theft of services.

Copyright is the right to publish wether you make a fucking copy or not.
Putting the video on a website is known as internet publishing wether it
be live or copied.

You said early on that you were smarter than me, but dude, you are as
dumb as a box of fucking rocks.

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Tempest

I suspect that it would be easier to prove Vicarious Infringement against the hosting companies.

Net Money

Awesome..and well said

Gunni

so if youtube violates some copyrights then the people that advertise on youtube can be sued?

StarkReality

I wouldn't call it delirious and it certainly wouldn't be a dangerous precedent, since it's not about forcing advertisers to check for copyright infringements.

It's about advertisers to take action once copyright infringements of a site their ads run on are brought to their attention, so they are aware of the infringement. That's a big difference.

You can't check every place your ads are displayed on, but once you know a site is full of copyright violations, you shouldn't be able to hide behind silly claims any more, even if you are "only" the advertiser.

sortie

The keyword would be "Complicit"

http://en.wikipedia.org/wiki/Complicit

That would have to be proved.

Example:

The bank can accept cash deposits from me in any amount with no legal
issues. But if I brag to the teller that I get all this cash per week from
selling cocaine and "jacking motherfuckers", then the teller cannot accept
the deposits. If the bank continues to take my cash deposits while fully
knowing that I obtained the money thru illegal means then the bank
is complicit in money laundering.

( The most relevant online issue of this was when banks were forced to
stop doing transactions for online gambling because online gambling is illegal
in the US. The banks argued that the gambling took place off shore and
therefore was totally legal. Bushco said we will procesute anyway because
US citizens were gambling and the banks caved in.)

So, if it can be proved that an advertiser provided funds to support an entity
while they had full knowledge that the entity was commiting crime then
the advertiser "could" be found to be complicit.

The issue with youtube is proving that youtube is commiting the crime and
not the site users who actually do the uploads.

If youtube had uploaded all those videos themselves and the advertisers were
informed that the content was illegal before they agreed to pay youtube then this would be a closed case.


Silly example:

You see a live high speed chase on TV and when the suspect pulls into a gas
station in front of your house, you can't run outside and give the guy $100 to fly your banner on the car for the rest of the chase.
The $100 allows him to buy more gas to continue running and thus
facilitated the crime.

I like the silly example because it is absurd. The reason it is absurd is because it is clear to everyone not to do that.
But when you throw in some high-tech equipment like the internet and
complex laws like copyright then people become confused and lose sight
of the basic premiss of crime, which is "don't knowingly facilitate the
criminal because that makes you complicit in the crime".

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dig420

I can declare myself King of the USA and midgets AND sign the contract, but if it doesn't stand up in court, I'm back to being just another guy.

ShellyCrash

Nice.

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GigoloMason

Well now that the GFY amatuer legal team is on it I expect this issue to be resolved shortly.

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ladida

Just another attempt at making the crowd seem like it's a "lost cause" and get on with the program. Balance is on, if more companies live with tubes as they are, and do nothing, nothing will change, and the change later on will be alot harder to accomplish. If the general feel is that people opose it, there's gona be changes. You're trying to accomplish the first, and that's why i didn't read further then the first post. Good try tho.

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baddog

Personal experience?