Is File Sharing Theft?

Peter Phinney

The language we use to frame digital piracy matters, and the real problem is that 20th century notions of theft simply don’t apply. Copying content one did not create is not the same zero-sum game as stealing, because the owner still has his original content. And now, entire generations of “Netizens” draw a sharp moral distinction between file sharing and theft. A March 2012 op-ed in the New York Times posits that “we should recognize that the criminal law is least effective – and least legitimate – when it is at odds with widely held moral intuitions.”

So, do we adjust the law to align with the commonly held values of the majority?

As an industry, we need to re-tune our moral compass and find common ground to work together toward fair distribution of intellectual property and creative content.

Judge Richard Posner’s August 2012 7th U.S. Circuit Count of Appeals ruling in favor of the “leeching” tube site MyVidter, overturned a temporary injunction brought by Flava Works which claimed that the tube site was guilty of stealing copyrighted content (what we commonly refer to as infringement.) Posner took the position that linking to stolen files already stored elsewhere (perhaps illegally) does not constitute content theft. And he went further, to equate this activity with sneaking into a theater through the back door to watch a film without buying a ticket; immoral activity he acknowledges, but not theft.

Trouble is, MyVidster and other leeching tube sites that don’t actually store content on their servers are not simply “sharing” files. They are engaged in illegal distribution of content they are not licensed to distribute. They are holding that back door to the theater open and inviting everyone in. And their business model is based on the sale of advertising and the sale of traffic – both of which depend on the number of eyeballs and clicks they generate displaying content that does not belong to them. The Electronic Frontier Foundation applauded Posner’s ruling in favor of MyVidster in part because the temporary injunction put an undue burden on the tube site and its operations as a small company that might not survive such an obstacle to its day-to-day operations. But the EFF did not address the relative size and financial strength of the two opponents in this case; FlavaWorks.com with an Alexa traffic rating of just over 300,000 in the US, and MyVidster.com whose traffic is 300 times greater at a rating of just over 1,000.

This problem is compounded in our industry by the advertising and traffic piece of this puzzle. Several of my high-profile adult clients make ad buys in large blocks where the various placements of their banners are not specified, and often those banners end up on leeching tube sites, running right next to a video player that’s streaming unlicensed (read stolen) content, sometimes content owned by the advertiser themselves. To make matters even worse, some tube sites that promote unlicensed distribution of adult industry content are themselves subsidiaries of larger corporations who produce original content and then seek to carefully protect its distribution. And in the most predatory of business practices, some companies promote illegal distribution of adult content and profit from it on tube sites, increasing their own treasure while robbing the original producer of his. And then they swoop down and buy the weakened studio for a fraction of what was its value before they raided it. Worse yet, some of these predatory companies are awarded industry accolades for their philanthropy when infinitesimal fractions of the profits they generate through questionable activities like these are donated to support the popular cause of the day.

Our notions of theft, our concept of intellectual property, and the way we talk about these issues really does matter. As an industry, we need to re-tune our moral compass and find common ground to work together toward fair distribution of intellectual property and creative content. And we need to change attitudes about copying and sharing – to draw a sharp distinction for the public between the free distribution of information and political speech online, and the distribution of original, digital entertainment content that must be paid for.

Peter Phinney is co-owner of Porn Guardian.


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