opinion

Copyright, Patent Reform Could Shape Adult Biz

Stephen Yagielowicz

Digital media companies are shifting business strategies in response to today’s market conditions, by pursuing pirates for profit, and by legally clubbing their competitive rivals.

Are there legitimate intellectual property concerns behind these (un)civil actions, or do patent trolls and copyright baiters dominate the legal scene; and how does this impact innovations in adult tech and beyond?

Copyright and patent reform are shaping the future of online adult, while creating challenges and opportunities alike — for businesses, as well as for the attorneys that provide your sword and shield.

There are as many new questions being presented as there are answers.

For example, an attorney can either be a sword or a shield, depending upon your immediate need; so while some adult companies have had to defend themselves against patent claims, others have gone on the attack, in hopes of stemming dramatic losses from content piracy. Typically, this has involved “John Doe” litigation against illicit bit torrent users based upon IP addresses — actions that have not always met with success.

Indeed, in what is being characterized in some circles as a win for American Internet users, a California judge, Howard Lloyd, recently rebuked Hard Drive Productions’ pursuit of pirates due to its strategy of trying to compel Internet service providers to divulge the personal details of their subscribers suspected of illegally downloading the company’s films — with the judge likening the practice to a fishing expedition designed to scare the accused into settling.

“The court realizes that this decision may frustrate plaintiff and other copyright holders who, quite understandably, wish to curtail online infringement of their works,” Lloyd stated. “Unfortunately, it would appear that the technology that enables copyright infringement has outpaced technology that prevents it.”

The judge sympathizes with copyright holders, but warns against predatory practices:

“The court will not assist a plaintiff who seems to have no desire to actually litigate but instead seems to be using the courts to pursue an extrajudicial business plan against possible infringers (and innocent others caught up in the ISP net),” Lloyd stated, adding, “Plaintiff seeks to enlist the aid of the court to obtain information through the litigation discovery process so that it can pursue a non-judicial remedy that focuses on extracting ‘settlement’ payments from persons who may or may not be infringers.”

“This,” the judge concluded, “The court is not willing to do.”

The United States Copyright Group Defense (www.uscopyrightgroupdefense.com) maintains a list of ongoing copyright cases, including many involving adult companies.

On the patent front, cases such as the recent Oracle against Google case and between Apple and Samsung are bringing the discussion of patent reform to the forefront. Apple is also battling Motorola over the way you view photos on your mobile device.

There are many other examples, but they all point to one thing: that clearance from a lawyer is as vital a part of the process of technical innovation today, as are the engineers inventing the processes that make life better and easier.

Attorneys may be an unwanted ingredient in the innovation stew, however.

According to Frugaldad.com Outreach Manager, Adam Jacob, 80 percent of software engineers believe that the current patent system hinders innovation by controlling ideas.

“The developer of the World Wide Web himself refused to patent the use of hypertext with the Internet so that it could be used by everyone,” Jacob wrote, adding that “Perhaps a revamp of the patent system is in order.”

In an attempt to raise awareness of this vital issue, Jacob has prepared an infographic, entitled, “The Problem With Patents” (www.frugaldad.com/patents/).

Of course, the adult entertainment industry is no stranger to patent concerns, with the high profile cases instigated by Acacia and Lodsys, as well as a new one — Tejas Research — being easy examples of what some call predatory patent trolling — while other observers would characterize it as protecting one’s hard-earned intellectual property — and similar to the adult copyright infringement cases plowing new legal ground, the patent infringement claims have had mixed success.

Whether it’s one company battling another for market supremacy or adult content producers trying to protect their products from thieves, copyright and patent reform are shaping the future of online adult, while creating challenges and opportunities alike — for businesses, as well as for the attorneys that provide your sword and shield.

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