opinion

May Law Beat: 2

Gregory A. Piccionelli
In part one we looked at Google, Perfect 10, the concept of fair use and beyond. In this conclusion, we'll examine producer's rights and explore the Perfect 10 case and the government's pursuit of Google more thoroughly.

Producer's Rights
Consequently, if you are a content producer, you may want to put your content library in the best possible position for enforcement of your rights, if you have not already done so. For example, you may want to register the copyrights in your works to enable you to take advantage of special damages, called "statutory damages," available under the Copyright Act for infringement of prior registered works. These can be significant. Statutory damages can be awarded to the copyright owner in the amount of up to $150,000 per work for willful infringement. However, before you commence your own copyright enforcement jihad, I strongly suggest that you first speak with a competent intellectual property attorney familiar with adult content regulations.

Like the Perfect 10 case, the outcome of the federal government's lawsuit to compel Google's disclosure of search information could also profoundly affect the adult entertainment industry.

If the government is successful in compelling Google to turn over the requested information, knowledge of the government's ability to require such data from Internet companies could dramatically affect the web surfing conduct of patrons of websites. It is likely that many adult website patrons will be concerned that their adult web surfing habits will be disclosed and/or somehow used against them.

Justice's case against Google also should be of interest to online businesses because the government's motion has revealed that the portions of many adult sites probably are already being scrutinized for content that is considered harmful to minors.

I think that we can be fairly certain of this because to justify its request for Google's data, the government contends that the data it is seeking will help it "draw conclusions as to the prevalence of harmful-to-minors material on the portion of the Internet that is retrievable through search engines."

The government further contends that "obtaining a set of queries entered onto Google's search engine would assist the government in its efforts to understand the behavior of current web users, to examine how often web users encounter harmful-to-minors material in the course of their searches and to measure the effectiveness of filtering software in screening that material."

While it is still uncertain whether Google will be compelled to release the data, one thing is for sure: AOL, Yahoo and Microsoft already have complied with the government subpoenas issued to them in August. Consequently, government investigators might already be "drawing conclusions" as to which sites have harmful-to-minors matter on the portion of their sites viewable from a link generated from AOL's, Yahoo's or Microsoft's search engine results. Such research could form the basis for early prosecutions under COPA if it survives its current challenge, or prosecutions for obscenity. Consequently, if you have hardcore depictions on the front of your site, you may want to consult with a competent adult entertainment attorney relatively soon.

How the Google cases will play out is unclear. But the direction taken by the government is consistent with a generalized trend I have noted in the past few years regarding a steady shift in the public's opinion of the Internet. Gone are the days when soccer moms and NASCAR dads, and their elected officials, looked at the web as a wondrous new information oracle ushering in a new age of instantaneous communication and universal access to the tools of enlightenment. Today more and more attention is focused on the problems created by the Internet, from spam to spyware, from child stalking to child pornography, from terrorist recruitment to Trojan horses, from computer sex site addiction (thank you, Oprah) to, of course, kids accessing online porn. I suspect that many who once looked at the web as a coveted luxury might now see it as simply a necessary evil. In any event, I feel it's safe to say that the bloom is definitely off the rose.

The change in perception in the general public, however, should be neither surprising nor viewed negatively. The Internet is now just another part of our lives and it is getting the same kind of re-evaluation accorded every new technical innovation. The introduction of automobiles was similarly looked upon with wonder and awe. For a long time automobiles were produced with very few mandatory safety requirements. Today, automobile production and sale are highly regulated at every level.

Just as highway auto accident injuries motivated new regulatory legislation and new judicial decisions, we should expect that the accidents and pile-ups on the "information superhighway" will motivate increasing regulatory legislation and re-evaluation of initial case law, such as may be happening in the Perfect 10 case. We should therefore expect more and tougher e-commerce laws, as well as more and more judicial re-examinations of previous decisions to more effectively address the public's growing desire to "get a handle" on the general lawlessness that has characterized the cyberspace frontier so far.

This year there will be important developments in a number of cases of critical importance to the industry: the Extreme Associates obscenity prosecution, the court challenges to COPA, 2257 regulations, Utah's email registry law and now the Google cases. If a rapidly changing legal environment were a Disneyland attraction, the years just ahead would probably qualify as an "E-Ticket" ride. Fasten your seat belts, folks.

Gregory A. Piccionelli is a senior member of Piccionelli & Sarno, one of the world's most experienced law firms specializing in Internet, intellectual property and adult entertainment matters. He can be reached at (310) 553-3375.

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