Are You Ready to Combat Piracy?

Q. Boyer

Legitimate producers and distributors of all manner of entertainment content are understandably fed up with online piracy. A casual perusal of adult industry message boards yields thread after thread decrying the impact of copyright infringement, bemoaning the inefficacy of the Digital Millennium Copyright Act and calling for the heads of tube site operators, torrent users and those who enable them.

Lurking beneath all this anger, however, is an enemy that is more subtle than the prolific pirate, but just as pernicious: it’s called defeatism.

Unless you happen to be both an adult content producer and an expert on the law and an expert on the peculiar mechanics of illicit online content distribution, you are very likely going to need some help with tackling piracy ...

Before I go any further here, I should acknowledge that many adult producers are trying to do something about the piracy of their content, be it actively and aggressively fighting piracy through the legal means at their disposal, or seeking to “co-opt” piracy and turn it to their marketing advantage rather than (or in addition to) fighting it. Whether they are doing so effectively is another question altogether, but when I say that a lot of rights-holders have become defeatist, these are not the people I’m talking about.

I’m talking about content producers and rights-holders who might go through the motions of fighting piracy (by sending emails to operators of user-generated content sites that don’t actually satisfy the requirements of a formal DMCA take-down notice, for example) but whose primary contribution to the anti-piracy effort amounts to a lot of bellicose rhetoric.

Don’t get me wrong; I understand and sympathize with the frustration these rights-holders feel, and I agree wholeheartedly with them that the safe harbor provisions of the DMCA place too much onus on rights-holders and not enough on site operators and end-user consumers. The problem is that some of these same rights-holders also believe they are already “doing everything they can” about piracy, when they are not even coming close to hitting that mark.

If you are a rights-holder, ask yourself the following questions: Have I registered my works with the Library of Congress? Have I confirmed that the DMCA notices I send out (and/or those that are sent out on my behalf by a third-party representative) are properly formatted and comply with the DMCA? Have I established an effective means of tracking which sites have not been responsive to take-down notices and which notices they failed to respond to?

The above list is far from comprehensive, but if you answered any of the questions above with “no,” or even “I’m not sure,” then you are decidedly not doing everything you can about piracy. In fact, you’re very likely undermining your ability to do anything about it in the future, at least with respect to content that you’ve already published and distributed.

The same can be said about any effort to co-opt piracy and use it as a form of marketing; passively allowing your content to be distributed by those who have no legal right to distribute it and relying on things like watermarks to magically bestow a branding benefit of some kind to you is not “marketing,” it’s wishful thinking. If you’re going to go the route of turning piracy to your advantage, it is going to require more thought, more work and more oversight on your part than simply allowing unfettered distribution of your content and then hoping for the best.

Unless you happen to be both an adult content producer and an expert on the law and an expert on the peculiar mechanics of illicit online content distribution, you are very likely going to need some help with tackling piracy, whether you choose to fight it head on or turn it to your advantage. I know a lot more about the option of mitigating the piracy of your content through fighting it than I do co-opting piracy, so I’ll focus here on the sort of help you will need to combat it.

Regardless of whether you retain a third-party service to assist with enforcing your copyrights in compliance with the DMCA, you need to discuss how DMCA safe harbor works with an attorney. Yes, I know: attorneys are expensive, but this is your business that we’re talking about. If addressing something as important as content piracy and how to fight it isn’t worth the money you will spend to have that conversation with an attorney, then you might be in the wrong business.

Why do you still need to consult with an attorney about the DMCA if you retain a third-party service like DMCA Force, Takedown Piracy, Remove Your Media, Porn Guardian or any of the other, similar services like them? You should never rely entirely on your service provider alone, no matter how reputable that service provider might be, when it comes to questions of law that directly impact your business.

Does the service that you are considering retaining issue take down notices that are compliant with the DMCA? That’s not a question you should try to answer for yourself (unless you also happen to be an attorney who is intimately familiar with the DMCA, and Section 512 in particular), and you certainly shouldn’t take the vendor’s word for it.

While I shouldn’t be considered an objective source on this question, given my association with DMCA Force, in my opinion it makes a lot more sense to retain a DMCA service provider like ours to handle locating online infringements and sending out take down notices than to do so on your own. It’s time consuming and tedious work and it will either occupy a great deal of your time, or require the hiring of full time, in-house staff to do it on your behalf. There’s also a significant learning curve involved, one that experienced service providers have already conquered. As for the expense, it will likely cost you significantly more to hire, train and retain staff dedicated to enforcement of your copyrights than to outsource the task.

At the end of the day, the choice of what to do about piracy is yours to make. The means of combating piracy, imperfect though they may be, are there for you to employ, and they will make a difference, and the same can be said of techniques designed to make the most of people pirating your content. Neither approach will entirely offset the negative impact of piracy on your business, but simply grousing about the tubes and torrents won’t offset that impact one iota.

In other words, doing not much will accomplish precisely the same.

Q Boyer leads communications for Pink Visual, TopBucks and DMCA Force.