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The Pitfalls of Porn End-User Copyright Litigation

The Pitfalls of Porn End-User Copyright Litigation

January 16, 2014
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" Not all of these lawsuits are created equal; some of the tactics and strategies that Prenda has found themselves in hot water over are not shared by other litigants and their counsel. "

The other morning, a friend of mine shot me a link to a new article on XBIZ.com with the headline “Porn Piracy Defendant Uses 2257 as Weapon” (see story, page 1) and asked me for my take on the news – not so much from a legal perspective (which is good, because I’m not remotely qualified to offer that sort of feedback) but from a public relations standpoint.

What does it mean for the broader adult entertainment industry to have a defendant in a piracy lawsuit use 2257 as a means to attack the rights-holder who has sued them for alleged copyright infringement?

In terms of an immediate impact flowing from this one lawsuit counterclaim, my hunch is that there won’t be much direct effect. If the counterclaim proves effective, even if that efficacy is just making it past the court’s initial consideration without being dismissed, the claim might be replicated by other such defendants – but even that development would only have an impact on other companies currently engaged in similar lawsuits.

What does trouble me, though, is the general state of affairs with respect to the industry’s public relations where piracy lawsuits directed at end-users are concerned – a state of affairs that I think can be quite fairly and accurately described as “not at all good.”

Driven in large part by the swirling accusations of malfeasance directed at Prenda Law and its various offshoots, the practice of adult entertainment rights-holders suing (or threatening to sue) end-users in pursuit of settlement agreements or damages at trial has been very poorly received by the media, and tech-focused outlets in particular. Worse, and far more significantly, the judges hearing such cases have become extremely skeptical about the motivations and tactics employed by the rights-holder plaintiffs, and the legal basis for these lawsuits, as well.

To be fair, not all of these lawsuits are created equal; some of the tactics and strategies that Prenda has found themselves in hot water over are not shared by other litigants and their counsel. The problem is, from a public relations perspective, I’m not sure that distinction matters very much, if at all. Any and all plaintiffs involved in such lawsuits almost inevitably will be put under the same microscope that the Prenda saga has created, and subjected to the same skepticism that has been causing Prenda’s lawsuits to implode in various courtrooms around the country.

The greatest concern here, to me, is that the people paying the most attention to these cases are part of the very demographic the adult industry would like to be marketing to right now: Young, tech-savvy adults who overwhelmingly get their entertainment (adult and otherwise) via the Internet.

Some will say that the only consumers truly bothered by this sort of litigation are ones who would never pay for porn in the first place, freeloaders who frequent the tubes and torrents for their porn, and who are unlikely to ever become purchasers. While there might be a miniscule kernel of truth underlying that assertion, if you look at the broader discussion of the issue, whether it is taking place on blogs, comment forums on tech news sites, or elsewhere, it’s undeniable that the adult industry’s already-questionable reputation is taking another hit over these lawsuits.

Whatever financial benefit there might have been when this practice of exacting settlements from alleged end-user pirates first kicked off, certainly it is no longer anywhere close to a “sure thing” or “easy money.” The cat is out of the bag now, and end-users know that the courts are nowhere near as receptive to these lawsuits as they were with respect to the ones initiated by companies in the music and film industries – efforts that didn’t really play too well in the court of public opinion themselves, but that largely avoided the sort of resistance from the courts that we’re now seeing in cases involving adult content.

Unlike the legal precedents being set in these cases, the public relations impact has potential to reach far beyond the courtroom, and to negatively affect companies that have never brought such lawsuits, and never intend to. The bad press emanating from end-user litigation will be used by some of the industry’s critics to paint us all with the same brush and depict the industry at large as an ethically-questionable, moneygrubbing beast, one that will threaten to embarrass and humiliate our own customers in its unrelenting quest to exploit people for monetary gain.

As such, it’s probably past time that the industry make a serious effort to distance itself from end-user litigation, or at the very least, to distance itself from Prenda and others who have drawn copious bad press through their highly aggressive and legally-suspect methods.

We need to make clear to end-users that we will not use against them the specter of being publicly identified as some sort of “pervert” because they have downloaded our products. While some adult entertainment rights-holders/litigants will protest that the real source of embarrassment here should be that the accused has stolen entertainment media, and not rooted in the nature of the content itself, in this age of rampant piracy of all manner of digital content, the sad fact is that there simply isn’t much public stigma attached to illegally downloading entertainment content — even if that illegal downloading is done knowingly and intentionally.

It’s also more than a bit disingenuous, in my opinion, for the plaintiffs in these cases to say that potential defendants’ sheepishness over being identified as the downloader of salaciously-titled movies isn’t part of what they are counting on when they try to extract a settlement from these people. (Far more importantly, from what I’ve read in the decisions and rulings coming from the court, judges aren’t buying it, either.)

To be clear, there’s nothing wrong with trying to protect one’s intellectual property rights, and in theory, there’s no reason a case can’t be made against an end-user/file-sharer without engaging in skullduggery, unethical practices, or highly suspect legal maneuvering. Unfortunately, in the “post-Prenda” world, I’m not sure that this theoretical possibility matters from a public relations standpoint; the pool has been poisoned, and the rot flowing from the bad apple has already spread to the bunch, so to speak.

Consider these points the next time you are asked by a member of the media whether you or your company support copyright lawsuits directed at endusers. Remember that they aren’t asking if you think, theoretically, such lawsuits could be a good thing, or could be handled ethically and responsibly. What they are really asking you, in effect, is: “Are you with us, or against us?”

A 16-year veteran of the online adult entertainment industry and long time XBIZ contributor, Q Boyer provides public relations, publicity, consulting and copywriting services to clients that range from adult website operators to mainstream brick and mortar businesses.


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