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LEGALESE | By Clyde DeWitt
Piracy Law Landmark Is this the last nail in the coffin for BitTorrents?
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
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.
comes in two
flavors, p2p and tube
sites. This decision
”Internet piracy
involves only p2p.
The topic here is a recent decision from the Ninth Circuit
involving internet piracy in general and BitTorrent sites in
particular: Columbia Pictures Industries, Inc., et al v. Fung, et al.,
___ F.3d ___, 2013 W.L. 1174151 (March 21, 2013). While
this case puts a dent in piracy, it certainly will not bring the adult
video production industry back to where it was a decade ago.
In the late 1990s, the author of this article, along with three
other attorneys in the adult business, was invited to speak at an
industry summit in Cancun. In his speech, the author expressed
concern that internet piracy—which then was just beginning to
destroy the recording industry—would soon wreak the same
category of havoc on the adult video industry. The response
consisted of a blizzard of emails with equations and other
technical statistics, all claiming those predictions to be nonsense.
Unfortunately, the prophecy was correct and the detractors were
wrong, as we all now know.
Internet piracy comes in two flavors, p2p and tube sites. This
decision involves only p2p.
The accused p2p—or BitTorrent—site, defended by top-shelf
internet attorney Ira Rothken, was isoHunt Web Technologies Inc.,
with websites isohunt.com, torrentbox.com, podtropolis.com and
ed2k-it.com. The allegation was a familiar one: The subject sites were
liable for copyright infringement, notwithstanding their claim that
they enjoyed immunity under the Digital Millennium Copyright Act
(DMCA).
At the trial court level—the United States District Court for the
Central District of California—the judge was one Stephen V. Wilson,
the same judge who wrote the groundbreaking opinion, with which
the United States Supreme Court ultimately disagreed, that Grokster
was not liable for copyright infringement because of its profound
difference from Napster. That difference was found in the fact that
Napster was a centralized system, driven by the Napster Web site;
Grokster, on the other hand, was not centralized: If the Grokster
Web site were shut down, the file sharing could continue. Metro-
Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 259 F.Supp.2d 1029
(C.D. Cal. 2003) aff’d 380 F.3d 1154 (9th Cir. 2004) vacated and
remanded 545 U.S. 913, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005).
In essence, the Supreme Court held that Grokster could not hide
under DMCA immunity while positioning itself as a copyright-
infringement haven.
That was the case, the court found, with the subject sites. Of
importance, the court noted the advertising revenue generated by
those sites. It also relied significantly upon the YouTube litigation,
reported in this column of late. Viacom Intern., Inc. v. YouTube, Inc.,
676 F.3d 19 (2nd Cir. 2012).
This case is yet another in the evolving law involving p2p and tube
sites. You can count on the fact that there will be much more to
||
come.
LEGAL NEWS
Free Speech Coalition Launches 2257Donate.com
Free Speech Coalition (FSC) has launched a fundraising website, 2257Donate.com, to raise money for the continuing legal effort against 18 U.S.C. § 2257, the federal regulations
governing recordkeeping for adult producers.
FSC has challenged 2257 on behalf of industry stakeholders, contending that the regulations represent an unconstitutional invasion of privacy for performers. The regulations are
not only burdensome but also could lead to fines or imprisonment for even slight errors in record-keeping procedure.
The current suit filed by FSC is in the discovery phase and has been “fast-tracked” by the courts, so that it may be heard as early as June. Attorney J. Michael Murray is repre-
senting Free Speech Coalition.
“A successful outcome to this litigation will save millions for adult companies who do business online,” said Diane Duke, FSC chief executive officer. “Additionally, it will
eliminate the threat of jail time for even the slightest of 2257 violations, from incorrect font size on your website, to misfiling of a document. This is our last opportunity to
overturn this oppressive and misguided regulation.
“But FSC can’t afford to do this alone,” Duke added. “We need to raise $300,000 in the next few months to fund this successful effort. We need your help. Please give, and
please give generously.”
FSC is asking that all industry members—companies, producers, performers and fans—to fund these legal efforts so that the trial may continue. If current regulations are struck
down it will be a major victory for the rights of producers, performers, distributors and the adult industry overall.
Kink.com founder and FSC Board member Peter Acworth has been working to help with fundraising efforts, and his company has donated $20,000 to the legal effort.
“I am deeply concerned about 2257,” Acworth said. “Just one issue is that 2257 requires a primary producer to share a performer’s personal information and ID’s with secondary
producers. (‘Secondary Producer’ means ‘anyone with a website.’) This is a clear violation of models’ privacy rights. Moreover, 2257 is impossible to comply with for a live cam
product and overly burdensome even for the primary producer. Please, let’s stay active during the lull in 2257 inspections, and defeat 2257 while there is still a chance.”
Online Buddies, Inc./Manhunt.net co-founder Jonathan Crutchley also voiced concern over the fate of 2257 litigation and the potential for harm that may result from stopping
the current lawsuit.
“Adult industry business should unite to beat this regulatory scheme,” Crutchley said. “Though there have not been recent prosecutions, if 2257 is not struck down, the door
will always be open for legal action against producers and the threat of privacy violations against performers.”
All contributors that wish to be recognized will be named on the 2257Donate.com site. For more information about 2257, contact Diane Duke at (818) 348-9373 or
diane@freespeechcoalition.com
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