By J. DeVoy
I’ve previously written about the futility of federal proposals to further regulate the internet for copyright infringement. Fellow blogger and colleague Ron Coleman – who participated in a really awesome brief with Marc and I – took note of my prior musings about this topic, focused on the failed Combating Online Infringement and Counterfeits Act, or COICA.
I’ve been following the PROTECT IP Act since it was first announced, but write about it now because it has made it out of committee in the Senate. There’s not much new that I can add to the zeitgeist of discussion and analysis available from numerous sources, such as the EFF and Citizen Media Law Project. For those interested, the bill’s full text is available here.
Like COICA before it, the PROTECT IP act does nothing substantive to assist the adult entertainment industry. While the bill could technically assist in taking down sites hosting torrent files, hosted files (file lockers) and even tube sites, the means prescribed in the statute are too cumbersome for the level of wide-scale enforcement needed to combat the tsunami of piracy washing away profits in adult. Because of the DMCA and ease of piracy, it is ubiquitous, giving rise to automated content-removal services that crawl piracy hotspots and send out DMCA takedown notices en masse - as the task would be insurmountable without automation.
To carry the luxury good thread used in my prior post forward, this kind of strategy may make sense where limiting availability of a Tiffany purse, for example, is an inherent part of the good’s value. In contrast, content producers want their content to be widely available (evinced by the migration to mobile compatibility, whether on smart phones or tablets), but in a format that must be purchased. Thus, while this bill is aimed at limiting the availability of infringing/counterfeited content, the market has already provided a cheaper solution for adult, and the PROTECT IP Act misses the mark in that regard. Indeed, piracy is like a hydra, and by the time a producer has cut off one head using the PROTECT IP Act’s procedures, (at least) three more have emerged in its place.
The PROTECT IP Act, like COICA, also misses the point in terms of remuneration. Companies aren’t viewing anti-piracy as a source of revenue, but a means to recoup lost sales that would have – and should have – been made absent rampant piracy. (Obviously not at a one-to-one ratio, as some people will never pay for porn, but the proliferation of “free” porn has led some people to land on the theft side of the fence when they otherwise would have purchased content.) While the Act allows for plaintiffs and the Attorney General to shut down sites, re-opening them is not particularly hard, as both Encyclopedia Dramatica and the trio of online poker sites recently sued all recommenced operations on foreign domains outside of the US’s jurisdiction within hours – even if it took a few days, or even just hours, for the word to spread and traffic to follow it.
If the Act had allowed for producers and copyright/trademark holders to pursue registrars and payment processors for the resulting damages, which would create significant new risks in those fields of law, I would be more optimistic about the pending bill’s ability to make even a dent in the war on content piracy. Seeing as this did not happen – and probably never will – I have serious doubts about the efficacy of this proposed law in the adult realm, as opposed to mainstream entities like the RIAA and MPAA, for which fighting piracy is the cost of doing business and no monetary ROI is necessarily expected.
It is hardly surprising that Congress, and all of elected government, is an apparatus for handouts to the elite. The persistence with which Congress is willing to trammel on free speech and expression in such a limited way that benefits only the chosen few with huge content libraries and even bigger war chests, though, verges on shocking. While PROTECT IP will give powerful trade organizations a new tool to play whack-a-mole with, producers who don’t eat if their content doesn’t sell won’t be able to do much with this act, and certainly won’t be able to recover anything financially with it. A twenty-something serial pirate in Eastern Europe won’t mind the hassle of losing a few domain names in the scheme of his ongoing piracy enterprise. If Visa or GoDaddy were potentially on the hook for facilitating their business, though, the practice would end almost instantaneously and, if it didn’t, content producers would be repaid, likely handsomely, in short order.