Page 42 - AVN April 2013

Business Sense_04.13 3/19/13 2:40 PM Page 42
LEGALESE | By Clyde DeWitt
Piracy … Ho-hum Will there ever be a reversal?
although the defendant would be entitled to contest
as much, perhaps by establishing that he never
owned a gun, knew nothing about guns and, as far as
he knew, a couple of hundred was a fair price.
The contention of Viacom (and the roster of other
plaintiffs that have chimed in) will be that YouTube
was an acknowledged copyright thief. It is
difficult to determine just what is going on
now; some sealed documents have been filed as
of late. Also, as you might imagine, there is
Clyde DeWitt is a Las Vegas and Los Angeles
attorney, whose practice has been focused on adult
entertainment since 1980. He can be reached at
an army of attorneys on each side.
At this juncture, there is no adult
ClydeDeWitt@earthlink.net. More information can be
found at ClydeDeWitt.com. This column is not a
substitute for personal legal advice. Rather, it is to
alert readers to legal issues warranting advice from
your personal attorney.
company with the wherewithal of Viacom
and its friends; also, there is no adult tube
site with the resources of YouTube.
However, if the Viacom/YouTube spat
comes out with some clear direction, that
may define how the tube sites can survive or not.
Another distinct possibility is that the case will
settle, which will leave everyone wondering.
Another factor, as we all know, is that
your home computer and your television
LEGAL NEWS
If the
Viacom/YouTube
spat c omes out with
some clear direction,
that may define how
the tube sites can
survive or not.
Another distinct
possibility is that the
case will settle,
which will leave
everyone
wondering.
”
Hollywood has launched a new offensive against piracy, once again raising this
issue. But will the problem ever end?
It seems that the adult video industry already must have taken all of the
beating that it ever could from piracy. The adult internet industry has largely
revised its business model; little is left of the adult DVD business. While a few
companies have attempted to make a profit center out of suing end-user p2p
file swappers, nobody has proven that to be a substitute for the “good old days”
of a decade and more ago. Moreover, the extent of success against properly
operated “tube” sites is very limited, although there is a glimmer of hope from
the beef between YouT ube and Viacom that continues to develop in New York
City (Viacom International, Inc. v. YouTube, Inc., 676 F.3d 19 [2nd Cir. 2012],
from which the case is now awaiting trial on remand). But who has the
financial wherewithal of media-giant Viacom?
Here’s the scoop on the YouTube/Viacom battle: YouTube hosts tons of
Viacom’s copyrighted programming, along with that of most others—except
adult, that is. Viacom brought a copyright suit; YouTube claimed DMCA
immunity. You can bet, by the way, that YouTube dotted all of its i’s and crossed
all of its t’s when it came to DMCA compliance. Accordingly, YouTube filed a
motion for summary judgment—that’
s a motion that says to the other side,
“Even if everything you say is true, you lose.” And Viacom lost, the court
approving DMCA immunity for YouTube.
On appeal, however, the federal Second Circuit Court of Appeals—one of
the more prestigious in the country—said, “Not so fast.” Given the discovery,
the appellate court said that indeed Viacom had a shot at establishing infringe-
ment and piercing the DMCA immunity. So, the case was sent back to the trial
court for the two Goliaths (Viacom, the media giant, joined by others, and
YouTube, owned by Google) to go at each other, which they did.
What the appellate court focused upon was the longstanding principle of
“willful blindness.” Example: For a couple of hundred bucks, Defendant pur-
chases a gun obviously worth $5,000 and with the serial number filed off. Does
Defendant know that the gun was stolen? No. Is he charged with knowledge?
You bet! Even in a criminal case, those facts would be enough to convict—
soon will merge, if they have not
already. When everyone becomes
accustomed to receiving television over the internet,
piracy can only increase.
The damage that piracy has done to the adult
motion pictures has been killing it with a thousand
cuts. Whether anything can reverse that trend is
doubtful. Indeed, many an internet company has
revised its business model to embrace the assumption
that enforcement of adult copyrights is impossible.
Meanwhile, heavyweights AT&T, Time Warner
Cable Inc., Verizon Communications Inc., Comcast
Corp. and Cablevision Systems Corp.—representing a
sizable chunk of the ISP industry—have announced a
new offensive against piracy. This gimmick, dubbed
the “Copyright Alert System,” is advertised, according
to sources, to bring the major ISPs
“under one
uniform program” to identify and retaliate against
serial pirates. That is being done with “intelligence
gathered by the Recording Industry Association of
American and the Motion Picture Association of
America.” Conspicuously absent from the MPAA-
RIAA alliance, as you might expect, is the Free Speech
Coalition or any other representative of adult video.
Looking at the threat, however, it does not appear
as Draconian as suggested. After detecting four to six
illegal downloads, the ISPs propose differing threats of
sanctions, ranging from calling the offenders on the
telephone to asking “repeat offenders to watch an
educational video.” Another possible step is to reduce
up- and download speeds of repeat offenders. That’s
going to stop piracy? Well, Time Warner Cable says,
“We reserve the right to terminate a user’s account for
serious abuse.” Notably, this does not seem to pose a
threat to streaming by tube sites.
We all shall see.
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