Adult film industry decries piracy in new video

By J. DeVoy

This surprisingly sober (and thoroughly whiny co-worker-safe) video from the Free Speech Coalition addresses the problems piracy causes in the adult entertainment industry.  For several years, “Tube” sites such as YouPorn, which feature content uploaded by amateurs and pirated from professionals, have taken a significant bite out of the industry’s earnings.

The video’s most salient point is made about one minute in by director Will Ryder: Torrents can lead to criminal liability because of what users don’t know they’re downloading.  In the halcyon days of Alberto Gonzales’s tenure as Attorney General, child pornography prosecution by the DOJ and US Attorney’s Offices across the country was in high gear, and that illicit content was showing up in all kinds of unexpected places — namely as parts of torrent files.  When someone downloads a torrent, he or she gets the end file from dozens, even hundreds of other people allowing the downloader to copy portions of it off of their hard drives.  Other files can get scooped up in this process, including child pornography.  This happened with non-trivial frequency, and US Attorney’s Offices brought charges against the people who had these files, which were identified through whatever mechanism the DOJ and FBI used to identify and track them. (Even if I could disclose this information, I wasn’t privy to how it was done.)

There are statutory carve-outs in the United States Code  that protects people unknowingly in possession of child pornography.  Under 18 USC § 2252(A), a person must “knowingly” fulfill the conditions of the statute to be guilty, so someone who has no idea he or she has the content may escape liability.  Under subsection (d), a defendant can raise an affirmative defense if he or she:

(1) possessed less than three images of child pornography; and
(2) promptly and in good faith, and without retaining or allowing any person, other than a law enforcement agency, to access any image or copy thereof—
         (A) took reasonable steps to destroy each such image; or
          (B) reported the matter to a law enforcement agency and afforded
                 that agency access to each such image.

Any guesses as to how many people out there would know about this provision?  Would even think to Google for it?  I’m thinking zero.  And woe unto the person who discovers more than three images.  As with most things, an ensuing cover-up of deletions would be worse than the crime.  The easiest, most effective solution simply is to not pirate anything through torrents.  Not porn, not software, not music — nothing.

Another highlight from the video: Lisa Ann dramatically taking off her glasses in the first segment.  It’s an old and clichéd move, but it always works; I bought glasses for the sole purpose of doing it.

Finally, the industry describes what it will do to fight piracy:

Many adult-film producers within the last month have begun employing fingerprinting technology to track online copyright infringement, Cachapero says. (Source.)

Overall, a good idea — one that Trent Reznor developed the early 1990s to identify which of his friends would leak his highly controversial, ultra-limited-release Broken video.  Universal Records has already indicated its intentions to watermark its musical releases as well.  While there may be technological impediments making this move more difficult for the adult film industry, it may be a good way to see where links are originating, especially if content is being released on multiple formats or through more than one distribution channel.

38 Responses to Adult film industry decries piracy in new video

  1. yoshi says:

    “Torrents can lead to criminal liability because of what users don’t know they’re downloading”

    But I find it odd that the message they are trying to send is you can go to jail for accidentally downloading -x- which is illegal. That’s true regardless of any downloading method. People don’t get busted for downloading 3 images of child pornography. They get busted for downloading millions and actively distributing it.

    “(Even if I could disclose this information, I wasn’t privy to how it was done.)”

    Its trivially easy to do. Its not magic. Or secret.

    Btw – I didn’t bother viewing the video – it reminds me of the days of “don’t copy that floppy”. These messages don’t work. They didn’t work in the 80s, 90s, or now. The message is weak. Its called – lets change the business model. Most appear to be doing it already – the porn industry is highly resilient if nothing else.

    • Christopher Harbin says:

      I wrestle with the “change the business model” argument a lot. I suppose the logic goes like this:

      1. Copyright infringement is so pervasive and you can’t put the ketchup back into the bottle.
      2. Therefore, media companies are competing with free.
      3. Accordingly, media companies need to change their business model so that Joe Consumer sees a value-add against “free and scary.”

      I don’t know, man. This isn’t the type of market failure I care about. The market failure I do care about is where someone buys the anime Trigun but it turns out the only version available in the US has the English dubs. So he goes to the torrents to get the Japanese voices with user-created English subs. That’s copyright infringement that I don’t give a shit about. You see this a lot with manga comics, too. I have absolutely no sympathy for the producers in this situation.

      Another example is to test compatibility of software without a demo. PC games are super finicky and if it doesn’t run on your computer, you can’t return it. So someone who steals it for a day, tries it out, and then buys it when it works — I’m okay with that too.

      I am willing to pay authors a fair amount for their product. But once I buy it, it should be mine. I don’t want to license a program, I want to buy it. And when I buy an iPhone, I should have the right to do whatever I want with it. If I want my iPhone to play .flac files, the DMCA should not be thrown in my face because Apple wants to keep itunes front and center.

      The notion that media companies should change their model in light of rampant copyright infringement is actually harmful to meaningful copyright reform. I like to pound the table that consumers should not let media companies define our rights by creating merely because they believe there is a market for it. So when music companies take the position that they merely license consumers the right to make MP3 files from a CD and accordingly could revoke it at will, we should protest that. Publishing companies shouldn’t be able to restrict my ability to sell my e-books to another, provided I delete my copy. But it is hypocritical to assert these things and also that we should be able to define content producer’s rights because infringement is so widespread.

      And when copyright reform is on the table again in Congress, we need to make sure the signal doesn’t get lost in all the noise. It’s going to be very hard to drown out the sentiment that measures like ACTA are necessary when the content producers are competing with free.

      • jfischer1975 says:

        So say we all!  I object to the portrayal of torrent services as universally illegal/imoral.  When my TiVo tweaks and misses an episode of “House,” I’m really expected to quit watching for the rest of the season and wait for the DVD release?  Eff that.

        • Cant you go buy it from iTunes? Or how about go watch it for free on Hulu?

          • Christopher Harbin says:

            Let’s say you could purchase it on iTunes, do you then think that we should not have a time-shifting exception? Should Fischer only be able to TiVo Jersey Shore if had paid a license fee?

          • jfischer1975 says:

            That would suck.  I’ve done the math, and purchasing an iTunes “Season Pass” for all of the shows that I record with TiVo would exceed my cable bill for the year — otherwise I would do it.

          • Of course there is nothing wrong with “time shifting,” but part of “time shifting” is being there to shift the time, right?

            I mean, when the time shifting concept came into play, you had to press Play and Record on your VCR to tape it, and if you didn’t make it home in time, or you set the timer wrong, you didn’t get a pass to buy an illegal copy.

            I’m not saying that there isn’t a moral use for torrent services — but I was responding to his example.

        • jfischer1975 says:

          Not always.  And the quality on both of those services is lower than HD.  Hulu is okay for a free service, but it ties you to your computer and forces you to watch commercials — an evil that is supposed to be alleviated by paying the price for DVR.  Content producers really need to come up with a way to allow consumers to what what they want, when they want, and how they want.  If I’m paying for cable (or satellite), I should get that kind of access to any material that is available through that medium.  It’s the 21st century, for Christ’s sake.

    • J DeVoy says:

      But I find it odd that the message they are trying to send is you can go to jail for accidentally downloading -x- which is illegal.

      Technically, it’s true. But that’s just how PR works – you need to legitimize the claim to the casual viewer.

      Its trivially easy to do. Its not magic. Or secret.

      Maybe so, but it wasn’t made clear to me or the other law clerks during my summer ’08 stint at a USAO. We were kept pretty far away from those cases, outside of specific research tasks, and only had a vague idea of how they worked in terms of discovery despite the office prosecuting tons of them.

  2. Michael says:

    Shouldn’t a prerequisite of *any* crime be either intent or at least negligence? It seems fundamentally wrong that you’d be guilty for possession 4 images that you possibly knew nothing of.

    • J DeVoy says:

      The statute does require knowledge. Section d is an affirmative defense and essentially penalizes coverup efforts that aren’t handled in a specific manner.

  3. WilliamODouglas says:

    Can you even get a copyright on pornography? The material is illegal to produce and sell in every state and sales and production are illegal federally.

    You can’t create the formation of a contract for illegal goods, can you establish copyright on it? If you can’t, it wouldn’t be piracy.

    • J DeVoy says:

      Can you even get a copyright on pornography? The material is illegal to produce and sell in every state and sales and production are illegal federally.

      lolwut? (unless you’re talking about child porn.)

      • WilliamODouglas says:

        Which part of Miller v California are you not familiar with?

        1. whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest;
        2. whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
        3. “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”

        Every state in the US has adopted this standard for obscenity prosecution, as well as the US government.

        See the case of Max Hardcore (AKA Paul Little), who was sentenced to 48 months in prison for selling porn on the internet:

        United States v. Little, 38 Media L. Rep. 1289

        • jfischer1975 says:

          You’re confusing “pornography” with “obscenity.”  Not all pornography is obscene.  The vast majority has never been judicially determined to be “obscene.”

          • WilliamODouglas says:

            No, Im not confusing the two. Im asking if you can acquire a copyright on illegal material, which hardcore pornography is – it meets the definition for obscenity in every state. See:

            United States v. Extreme Assocs., Inc., 431 F.3d 150

          • jfischer1975 says:

            Obscenity is a question of law to be determined by a court of competent jurisdiction.  Unless you’re a judge, you don’t get to decide what is obscene.  Therefore, your determination that “hardcore pornography meets the definition for obscenity in every state” is insufficient to establish that a particular piece of “hardcore pornography” is actually and legally obscene.

            • WilliamODouglas says:

              Wrong Barry Law School. Obscenity HAS been defined. It was defined by the court in 1973, it has been upheld in every case related to obscenity since then most recently in Ashcroft v. Free Speech.

              Pornography has not been defined, but you know it when you see it. There has as of yet not been a case of pornography sales or distribution in which the court has found the pornography not to have been obscene. In a theoretical universe there is a place where porn doesnt meet the community standards for prurience (Perhaps at Barry Law School?), but in the 50 states so far, the bar has been set that hardcore pornography meets the legal definition for obscenity.

        • J DeVoy says:

          pornography != obscenity. Some porn is obscene, as you note with Max Hardcore; obscenity is not protected speech. Pornography is expression that falls short of the Miller test, though, and therefore has constitutional protection until it’s proven to be obscene. Miller didn’t create some broad proscription against creating pornography everywhere.

          You’re right, though, about the “community” standard being intensely localized. A recent florida case rebuked the use of Google in proving norms for what constituted obscene within the community. The search engine’s results were not held to be representative of the community in which the obscene speech was made.

          • WilliamODouglas says:

            There is no definition of pornography, but your assertion that Miller didn’t create a proscription against pornography is incorrect. The court in miller stated that states have a right to prevent the spread of material which appeals to prurient interests, which is effectively the definition of pornography (Though the court as of yet has declined to define pornography).

            There is a reason you won’t be able to find a case which says that pornography is not obscene, and therefore subject to speech protections, ergo protected by copyright.

            • J DeVoy says:

              The court in miller stated that states have a right to prevent the spread of material which appeals to prurient interests, which is effectively the definition of pornography (Though the court as of yet has declined to define pornography).

              A state ban, if it could even withstand constitutional muster, is separate from a universal ban emanating from the Miller decision. I’m done feeding the trolls.

            • WilliamODouglas says:

              Deleted due to douchebaggery

            • J DeVoy says:

              Deleted due to troll feeding

            • WilliamODouglas says:

              A ban and the ability to prosecute someone for the production of some thing are not the same thing. Because of the costs of litigating an obscenity trial the state govs almost NEVER go after these sorts of cases and the feds RARELY do though more frequently than their state counterparts. There is a defacto ban on pornography which the government can choose to enforce at its leisure. The problem is that the fines int he little case were so comparatively small to the associated costs of litigation that resulted – the real benefit will be the message that is sent by cases like this which occur about every 4 years.

            • jfischer1975 says:

              What law school did you go to, where they didn’t teach that prior restraint is unconstitutional?

            • WilliamODouglas says:

              A little law school called THE UNIVERSITY OF CHICAGO. I’m sure you think about it when you are your four future insurance defense law colleagues wonder what serious career errors you have made. Perhaps you read a little case called Freedman v. Maryland, 380 U.S. 51. It allowed prior restraint in cases of obscene speech. This is PRECISELY the area in which the court has found that prior restraint can be used.

  4. Christopher Harbin says:

    Troll poster is trolling.

  5. First off, stop FUCKING NESTING THE REPLIES when it turns into a one-word-per-line reply.

    Second, Mr. “William O Douglas,” you claim that you attend the Univ. of Chicago, but your IP address ( traces back to John Marshall Law School. And, your email address suggests that you work here. So STFU.

    Finally, the only abject fucking imbecile who still thinks that porn is not copyright protected is Ann Bartow, who is an abject moron.

    On the other hand, the 5th and 9th Circuits put an end to this notion decades ago. See Jartech v. Clancy, 666 F.2d 403 (9th Cir. 1982). See also Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir. 1979), cert. denied, 445 U.S. 917 (1980) (“There is not even a hint in the language [of the Copyright Act] that the obscene nature of a work renders it any less a copyrightable ‘writing’. There is no other statutory language from which it can be inferred that Congress intended that obscene materials could not be copyrighted. . . . The history of content-based restrictions on copyrights, trademarks, and patents suggests that the absence of such limitations in the Copyright Act . . . is the result of an intentional policy choice and not simply an omission.”)

    You’re punked motherfucker. Go back to your internship at the people’s law center, and troll somewhere else.

    And boys, yes, you two — dont feed the fuckin trolls.

  6. jesschristensen says:

    I thought it was a really well done PSA. Good work FSC!

  7. Michael Whiteacre says:

    I’d like to thank you for this engaging look at the new PSAs, which I directed and co-wrote for the Free Speech Coalition. Prior to working behind the camera, law was my field (Vanderbilt Law School 1993), so many of the issues you and your commenters have addressed were present in my mind when I put these together. I’m pleased to have stirred so much discussion.

    My personal view is that if every available protection and all possible relief are not afforded ALL types of speech — but PARTICULARLY unpopular ones — we’re truly doomed.

    Oh, and the glasses schtick (LOL) it was done both for dramatic effect, as the author noted, but also because the woman doing it gained fame most recently for wearing them while satirizing Sarah Palin. Her removal of her spectacles at the outset of the PSA therefore also signifies the character(s) being shed — this message comes from the performers themselves on a matter that affects them directly.

    Thank you all again for your consideration and review.

  8. Mark says:

    I love Nicki Hunter


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