Jay DeVoy is an attorney focusing on First Amendment issues and regular contributor to the award-winning law blog The Legal Satyricon.
The Salon-esque parody headline aside, copyright infringement lawsuits are an issue that have affected and will continue to affect men in the future. Men will be most overrepresented in the wave of infringement lawsuits regarding pornography, though. It doesn’t take any deep statistical analysis to figure this out, either. Thought experiment: Who is more likely to torrent porn, men or women? Considering that this activity 1) uses the internet, 2) in a manner more sophisticated than point-and-click social networking, and 3) deals with visual depictions of sex, it’s easy for anyone honest about gender differences to see where such lawsuits will affect men more than women.
This is a men’s issue on both sides, for both content producers and consumers. A few exceptional women-owned studios aside, such as Jennaration X and Burning Angel [N.B. - I won't link to any studio for courtesy to content-sensitive readers, and to spare them from the resulting dreaded HR "meetings"], most of the industry largely has been founded and advanced on the backs of men like Larry Flynt, John Stagliano, Jules Jordan and John Leslie Nuzzo, among others. Adult Entertainment, and the men who created billing services to bring it to people’s homes – documented in the movie Middle Men – created the entire micro-economy of e-commerce. For those who question the amount of work needed to sell a product to people who want it, bear in mind that most of the successful people in the industry faced criminal charges for obscenity at some point, even recently, and others still do.
Understanding the Business
While the entire industry brings in a couple billion dollars a year, it is by no means as large as many people like to think. Forbes breaks it down here. When you cut up that porn pie, you will see that many of the slices are diet sized. Given the niche nature of the industry, most DVD titles sell around one thousand units. When you rip off a Metallica song, you may contribute to a large aggregate loss for the record company, but your individual theft doesn’t really change the record label’s bottom line. When you steal a single adult movie, you may have stolen a significant portion of that movie’s sales. And that’s when you steal from the companies that crank out DVDs, which tend to be the larger producers. Internet-only companies face a bundle of related, larger problems, as their content is already optimized for digital transmission and sharing.
Aside from a handful of market leaders, most internet porn companies are smaller businesses than your local Chipotle franchise, and they are often run by the very people on screen. When you steal Up, it doesn’t really take much money from Pixar. When you steal porn, it very likely will have an immediate and measurable negative impact on the actor, director, and publisher. With the current degree of online piracy, most adult studios’ profits are down 60%. Though hardly poor, they lack the resources to pursue every instance of infringement solely to make a point. Recast in a different light, a local hardware store could not stay in business if 60% of its inventory being moved out the door was stolen. Adult entertainment businesses are the same size, and rely on the same ethic, and yet there is less stigma attached to theft by torrents and other peer-to-peer sharing.
The adult entertainment industry is a collection of many smaller companies without a monolithic trade group to represent its economic interests in court and before Congress. While the Free Speech Coalition and ASACP are trade organizations representing the industry’s principles and a subset of their legal interests, there is no equivalent of the MPAA, RIAA or even a BMI/ASCAP-type entity to bankroll sector-wide anti-piracy endeavors. This eliminates the cost-spreading structure that allowed the RIAA and now MPAA to ruthlessly pursue thousands of litigants for years, and the adult entertainment industry is left with individual studios acting alone to enforce their copyrights against the most egregious pirates. Framed in gender didactics, it’s the same advocacy disadvantage men have when confronted by NOW and the League of Women Voters.
In 2000, right when online piracy became a huge issue, Courtney Love gave an eloquent defense of file sharing, essentially backing up the argument that a lot of online copyright thieves employ — that when you steal music online, you’re not really stealing from the little guy musician, you’re stealing from the fat pig record companies. While not making it less illegal, that rationale has some moral justification when the main profiteers of music and movies are large studios producing thousands of titles and employing even more people. A small business, however, cannot sustain such losses without feeling them immediately.
More than Naughty Pictures
Weighing social and technological advances together, the adult industry’s impact on American culture has been second only to NASA. In the 1980s, porn’s choice of VHS over Sony’s Betamax ended the format war. In the 1990s, pornography was at the spearhead of internet development both in terms of technology and business models, designing affiliate programs and billing services at the same time it pushed for video, audio, and more efficient photo services. If you watch any video online, thank the porn industry. In fact, if you use the world wide web, thank the porn industry. While porn didn’t invent the internet, it certainly acted as the amniotic sac for the fetal Web.
This trend has not slowed. The adult film industry swiftly adopted the now-dominant BluRay media format, ensuring its viability and winning the war against HD-DVD. Ironically, this helped Sony’s format win, after doing the opposite decades earlier. Porn has also been instrumental in transcending format wars with video on demand (VOD) technology. Vudu, an early VOD service that offered a channel catering to adult entertainment, was recently acquired by Walmart and forced to end its adult offerings.
The net result of adult entertainment’s viability as an industry has been an undercurrent towards faster, higher quality and more widely accessible technology. Every other sector has benefited from the accessibility and ubiquity that adult entertainment has sought to achieve, given its patrons’ frequent need for discretion. Culturally, people are experimenting more and, as the data above suggest, enjoying themselves more as well. Not to say that people are uncreative on their own, but the adult entertainment industry gives them ideas, whether for technology, business or physical activities, that they may not have thought of on their own, and that entrenched interests like film and music companies have no interest to develop.
To those who say that “the model needs to change,” they’re right. That’s why the adult entertainment industry has constantly been in a state of flux, and has material available in print, on DVD, and online. This has also been a major reason why the industry has not been able to establish trade cabals like the RIAA and MPAA. The common thread of the industry, and reason for its existence, is original content — content that is copyrighted and entitled to a range of legal protections. All of the structural change in the world will not alter the fact that a right to produce and protect original content is at the core of adult entertainment; it is the industry’s sole commodity, like coal, oil or copper, that derives value by virtue of its relative scarcity. Content producers want you to have access to it on your phone, computer and television, but legally, and can only advance the technology required for this goal if they have the money to research and perfect it.
Helping a Brother Out
In the world of content creation, U.S. Copyright law governs what can be protected and how those protections work. There are limits to what can be copyrighted, so that someone cannot claim a proprietary interest in a mere idea. For economics wonks, there are individual rights within a copyright that can be broken down and sold, licensed or assigned to others, such as rights of republication or broadcast. And, to protect the creator, there are provisions that allow for recovery of up to $150,000 for willful infringement.
There is a constant drone about copyright law from those at the technological frontier – that it stifles innovation, that it’s stilted in favor of large studios, and that it’s become obsolete. These may all be valid criticisms, but the law on the books remains the law on the books until it is changed. Feelings are irrelevant to the law as written. But, feelings – or plain old good taste – are relevant to how one chooses to use it as a sword. If someone was reposting The Spearhead articles because they agreed with the message and wanted to get the word out to others – or even if they disagreed and wanted to critique the piece’s arguments – it seems unlikely that Mr. Price would hunt them down and sue them, absent some kind of rampant misappropriation and profiteering (and, even then, my dealings with W.F. Price lead me to believe he’d try to settle everything as quickly and cordially as possible). When you create for your livelihood rather than your cause, though, then every penny lost to piracy counts that much more.
The easiest way to not get caught in such action is to not steal. People caught in such lawsuits have claimed it is unfair to bring up what the pirated content was in order to shame the pirate into settlement. I think lawyers who employ that tactic are undermining their clients. There is no shame in creation, or in commerce, and what one does in the privacy of his own home would not even be under public scrutiny but for one important fact: the defendant stole. There is no reason to steal, and bring caught will carry a penalty worth several dozen legitimate DVD purchases or monthly website passes. Knowing the industry demographics, though, why would you steal? Adult entertainment is unique in that the average woman is paid more than the average man – often by factors in a scene where they both appear. The field predominantly is run by male small business owners, though, who are also well represented in this publication’s readership, and can relate to the myriad of issues faced when creating something new and important.
As always, honesty is the best policy. Otherwise, change your network password often, even if you give it to friends occasionally, and make sure you know who’s using your network. If someone comes over for a weekend, logs on, and has a torrent running in the background, a motivated plaintiff will have your IP address when he comes knocking. Actually, he won’t – it’ll be a letter from your internet service provider telling you that they’re giving up your internet account information, followed by a visit from your friendly neighborhood process server. At that point, it’s a matter of how little you can get away with paying – motions to quash subpoenas for identifying information in copyright cases tend to have a low return on investment; when a case is brought properly, a motion to quash’s likelihood of success is low. At that point, it’s time to admit wrongdoing and try to get off as lightly as possible, even if you’re forced to suck it up and pay a “d’oh tax” for failing to properly secure or monitor your wireless network.
People are free to dislike pornography and choose not to buy it. They can keep strip clubs and video stores out of their cushy suburbs if they can convincingly show that it will increase crime and harm property values. If all of the major studios were to shut down tomorrow, there would still be more porn around than any one person could need in his or her lifetime, but that’s not the point. However indignant or repulsed one might feel, there is a bright line between what is and is not theft; distaste for something does not excuse stealing. As an inexorable force for technological change, porn is intrinsically valuable, and its producers have to defend their ability to stay viable – profitable, even – for the rest of us to benefit from its existence. Nobody likes to be sued, or to pay a settlement of several thousand dollars. But, widespread piracy has destabilized an entire industry, and one that has worked to be rather versatile, as opposed to the recording and movie industries’ desperate grip on decades-old models of distribution.
Special thanks to Marc Randazza.