Thursday, November 18, 2010

Adult firms committing suicide by lawsuit

When some heavyweights of porn, including Hustler, got together last month to try and hammer out a plan to stop illegal file-sharing of adult content, a lot of people in the mainstream were watching. Some of those involved in the meeting, such as Pink Visual president Allison Vivas, promised that the so-called "content protection retreat" wasn't just a talk-fest, but that concrete actions had been agreed on and were imminent. Indeed, the group plans to "effectively drive those who engage in adult content piracy completely underground by January 2012."

It looks like the results of the meeting are taking shape in the form of lawsuits against people who are file-sharing porn over Bittorrent. According to ZDNet, about 30,000 people have been named in various lawsuits in the past few months, which is more than the U.S. music industry sued over the course of a few years.

While the film and music industries gave up on suing individual users, the adult industry - or at least those companies involved in the retreat - believe they have a secret weapon that will let them win where others have failed: shame. Aside from suing individuals who have downloaded their movies, the porn companies intend to publicly name these people and what they stole. So, other than a potential legal penalty, downloaders may also have to deal with the social repercussions of everyone knowing that they were guilty of watching Super Horny She-Males 7 (I made that up, although it probably does exist).

The producers are using a number of clearing-house-type legal companies, such as the Adult Copyright Company and the Copyright Enforcement Group, to file lawsuits on their behalf. The porn companies are finding this setup quite appealing because they don't pay the lawsuit chasers a penny unless they get results. As for the downloaders who risk being exposed, they have a convenient option: they can log on to a website and settle out of court to avoid being shamed, with at least one of the lawsuit companies setting $1,500 as the correct amount.

The Electronic Frontier Foundation, an advocacy group that watches out for people's rights online, has significant problems with this approach, largely stemming from privacy issues and whether the lawsuit companies really know what they're talking about when it comes to intellectual property. The EFF also thinks this could lead to online scams arising, where people pay settlements to fake websites. The ZDNet story sums up the EFF's issues quite well, even if it is full of every wink-wink double entendre and cliche you'd expect in a mainstream news story about porn.

I too have serious problems with this approach, basically because the punishment does not fit the crime and because it's a potentially suicidal move for the adult companies involved. In the first instance, if someone downloads a porno and then shares it over Bittorrent, yes, they're costing the producer money. That could probably be quantified in court, and the offender made to pay it back if found guilty.

However, the shame/blackmail aspect is simply abhorrent. On the one hand, the pornography industry has for ages argued that what people do in their homes is their own business, and it has profited immensely - both financially and legally - from that stance. Now, they want to turn that argument against their own former-and-potentially-future customers. It's the worst kind of hypocrisy. Yes, porn companies are mad about people stealing their product, but resorting to blackmail to fight back? So much for the supposed moral high ground they've spent decades building.

Worse still, by exposing what people have watched in the privacy of their own homes, the porn companies could also ruin their lives - and in some cases jeopardize them (as ZDNet points out, there could be serious problems for someone in the military who is found out to be watching gay porn). We all know what that will lead to: more lawsuits. And those ones will be big and, certainly in some cases, entirely justified.

The film and music businesses gave up on trying to sue their customers because they smartly figured out that the monetary return they'd get by doing so simply wasn't worth the damage to their own brands. Just ask Metallica, a band that no one takes seriously anymore. As I said, the mainstream was watching to see what came of this content protection retreat - they must be laughing now.

What I find especially galling about the whole situation is how adult companies time and time again try to stress how technologically innovative they are. There's nothing innovative about lawsuits, especially when they've been proven not to work - at least not without blackmailing potential customers. We should all know by now that the internet is killing old business models left and right, and using courts to try and keep them alive just isn't the way to go.

How this is likely to shake out is that Old Porn - the likes of Hustler et al - are going to die off, to be replaced by smaller adult companies that are indeed more tech savvy, and who know that innovation is the real secret to success in the industry (the slow death of Playboy is a perfect case study). Suing customers certainly isn't the way to survive.


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