Adult Mobile and the Law: 1

Gregory A. Piccionelli
In the May 2005 issue of XBIZ World, I addressed the newly emerging mobile content distribution platform and its implications for the adult entertainment business. What has happened since then is truly remarkable. In less than a year, the display of adult content on mobile devices has gone from a cool techno gimmick to a sophisticated multinational business.

During that time, the concept of adult content distribution via mobile phones in the U.S. has gone from relative obscurity to innumerable featured news stories in both the mainstream and industry press. Not surprisingly, distribution of erotic content to mobile phones and other mobile devices also has drawn new wrath from the Religious Right, motivating legislative hearings and, in the case of Utah and Michigan, the enactment of new regulations.

Most instructively, however, is the fact that mobile adult content has become a billion-dollar worldwide business. In fact, the market for mobile adult content is now growing so fast that it appears sales will exceed initial projections by Jupiter Research of $2.1 billion by 2009. Not surprisingly, the mobile adult content business now even has its own tradeshow called Mobile Adult Content Congress, also affectionately known as the MAC Congress. I attended and spoke at the congress and found that the quality of the event, the sponsors and the attendees, as well as the general vibe of excitement that infused the conferences, reminded me of the early days of the Internet and the early Internet shows like the IA2000, when we all knew we were taking part in something truly extraordinary.

I am proud that XBIZ World and this column were among the first in the industry media to critically examine the emergence of the mobile adult content phenomenon. Continuing in that tradition, this article will take an updated look at the commercial promise and legal perils of what has come to be known in the industry as “adult mobile.”

Over the past year it has become clear that the mobile adult content distribution platform represents much more for the adult entertainment business than just the opportunity to sell erotic ringtones, also called “moantones,” or sexy wallpapers on cellular phones. In my previous mobile content article I suggested that the much-anticipated “convergence” of media platforms may not be centered around the personal computer or even IPTV, as had been generally believed. Instead, I predicted that the convergence of media platforms would be focused on the mobile telephone.

Indeed, the rapid evolution of the capabilities of mobile phones in 2005 may well be the clearest indication yet that such a convergence, which was well under way in Europe and the Far East, has at last commenced in the U.S. For example, by the end of 2005, many U.S. cellphones were available with features that enabled the devices to function as mini video camcorders, full-featured web browsers and quasi-iPods, capable of downloading and playing hundreds of iTunes music files.

File Compatibility
IPod file compatibility is particularly important because the Video iPod platform has spawned a parallel and synergistic adult content distribution revolution of its own. I predict that within two years, we will see a virtual merging of the capabilities of Apple’s new Video iPods and mobile phones. This trend will be particularly important from a legal and business perspective, especially if the main route of adult content distribution to mobile devices becomes one that bypasses the telecommunications companies and their mobile network servers, which currently restrict content to a greater degree than web-based distribution.

In other words, the industry likely will benefit if adult content is primarily distributed to the consumer via the route of web-to-computer-to-iPod-file capable or USB-enabled phone (or directly from web to phone) versus a mobile network server-to-mobile phone route.

But regardless of all the new features our mobile phones have acquired in the past year, it is clear that we ain’t seen nothin’ yet. It is likely that in years to come, we may hardly recognize what was once just a telephone. For example, over the next decade we will see:

  • Mobile memory capacity comparable to desktop and laptop computers.

  • Mobile bandwidth capacity and price to comparable hardwired sources.

  • The development of heads-up mobile monitor “glasses” and immersive goggles.

  • The development of accurate speech recognition and virtual input and control devices such as projected keyboards and virtual mice for mobile phones/computers.

  • The use of mobile phone GPS technology in a wide variety of business models from location-based tourist assistance and shopping guides to location-based games and gaming. For example, finding legal online gambling when one is on Indian land or other authorized pinpoint locations or location-based online dating services enabling participants to contact other persons in their online dating service that happen to be currently located in the same bar, club, library, etc.

Increased Capabilities
Because of increased memory and bandwidth capabilities and the introduction of practical audio command recognition and virtual input and control devices, mobile devices will become so powerful and user friendly that they may well replace a number of common electronic devices in our personal environment.

For example, eventually mobile devices could all but replace desktop and laptop computers. They also will likely soon be capable of receiving communications from your satellite dish or cable box in order to transmit signals to television or computer monitors throughout your house, eliminating the need for the set-top box and remote control.

Soon after the immersive goggles and practical virtual I/O devices discussed above are introduced, even game boxes such as the PlayStation and Xbox could be replaced by mobile devices.

Eventually, our mobile phones might even contain electronic keys to electronic locks on our doors and function as our electronic wallets and payment devices. There already is downloadable software that enables the camera in your phone to function as a UPC scanner.

What all this means ultimately is that the future for mobile phones is brilliantly bright and the opportunities are boundless. The fundamental reason for this is rather straightforward: Nearly everyone on the planet will be carrying a mobile phone wherever he goes. But this fact will have implications for adult content distributors beyond providing the force that is driving platform convergence.

Many persons are seeking to exploit adult content producers’ relative unfamiliarity with mobile phone technology and the new worldwide market for mobile adult content — and unscrupulously so, I might add.

Also, the Religious Right already is gearing up to oppose what it sees as a particularly effective means of distributing the “devil’s filth.” Their antagonism to mobile adult content distribution is amplified by their concerns that mobile telephone distribution of adult content presents a higher risk that children will access the material and that adult consumers will display the content in public. Regardless of whether these concerns are warranted, the issue already has caught the attention of federal and state lawmakers.

Consequently, to assist producers, marketers and others who wish to participate in the adult mobile content revolution, I have prepared a brief set of issues that I believe every person contemplating entering into the mobile adult content distribution market should consider. Before you commit your content to distribution via mobile phones, it is advisable that you acquire at least a basic understanding of the underlying mobile technology.

In part two, we'll examine the law, the cellular providers and issues to consider when negotiating your agreement.

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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