Piracy Journal: An Industry Coming of Age

Peter Phinney

I have been ruminating about this column for some time. It started when I read an unflattering article in a mainstream publication after the XBIZ EU show in London about how the industry appeared to be “on its death bed.” The author talked about a “disappointingly beige” conference focused on seminars about payment processors and government regulations. It was clear this reporter (female) expected to see something far more salacious from the adult entertainment industry.

I get a similar reaction whenever I tell someone from the outside what I do, fighting piracy of adult videos and counterfeit of adult pleasure products. I see their initial fascination turn to vague disappointment when they come to understand that I don’t have any foreign objects inserted in my rectum and I actually manage to keep my pants on throughout the business day — most work days, anyway.

There’s a rising sentiment among senior jurists abroad that filming people having sex on a couch does not require any direction or thought or planning or originality — it’s simply the effort to point and shoot and sell the footage.

I think what’s happening is our industry is coming of age.

It struggled through its infancy when forward leaning entrepreneurs were making dildos in their garages or filming their girl friends with an 8 or 16mm movie camera, running grainy, duplicate silent films and selling them from ads in the back of what were then called “girlie” magazines. Those were the Wild West days of adult. Then, piracy was confined to a few nerds trading scanned magazine images on Internet Relay Chat and CompuServe.

Our adolescence ushered in the analog, and then the digital age; first videotape, and then DVDs. Piracy blossomed through the 1990s as files became smaller, software more robust and inexpensive storage hit the market, allowing consumers to maintain an entire library on a whirling external hard drive.

Our late adolescence in the 2000s saw the invention of torrents and swarms and seeding; the game changed again and piracy grew exponentially. Online auction sites like eBay began serving adult content, and Amazon —initially born for books, then ultimately serving manufacturers of goods including adult products, almost immediately became as profitable for counterfeiters — in some cases more profitable than legitimate manufacture of original goods.

Now as we gain maturity as an industry, our concerns have begun to center more on self-preservation — probably because we sense our own fragile mortality. Piracy has done serious damage to most all of us on the content side, and rampant counterfeit more recently has wrought similar havoc on the products side. As several of us who have been around for a while get into our 40 and 50s (and as senior statesman, I turned 60 this past year,) we are all coming off warrantee ourselves as human animals so we’re experiencing age and disease and stiffness (not the good kind) of all sorts. Both as individuals and as companies, we are confronting our own mortality for the first time. Many of us are showing the wear of many years of being ridden hard and put away wet. I can say this because my tread is among the most worn as I look around the room at adult tradeshows now. New revenue models like micropayments are challenging our companies, and intellectual property theft and trademark infringement are the arthritis, dementia and heart disease of our corporate existence.

Just like us as individuals, some of our companies are aging more gracefully than others. A few of our companies have, sadly, passed away in the last six or eight years. And more of them have been gobbled up by larger, better positioned corporations that made better choices or perhaps just had better luck through the industry’s early adulthood.

But we’re not on our deathbed as an industry as that London reporter claimed in September. We’re getting older certainly, but we’re also getting wiser in many ways. Some of us are taking better care of ourselves as corporations — taking prescribed medications to prevent specific ailments, like combating piracy because we value our intellectual property. We’re hiring specialists to help us.

We’re putting legal contracts in place and keeping better records, and we’re subjecting our sites to occasional penetration testing — like we subject our bodies to endoscopy and colonoscopy — to help us discover our weaknesses and possible specific vulnerabilities while they can be treated and before they get out of control. I smile to myself sometimes when I talk to a content producer who claims that his is a “premium brand” because his performers are expensive and unblemished and his flattering lighting and dramatic camera angles are self-consciously “cinematic.”

He tells me he cannot afford to register copyright for every new weekly update, and I think to myself, “that makes yours amateur porn” given the low cost and enormous benefits to taking that simple step.

Registering copyright for all of your new video is like taking a baby aspirin to prevent heart disease. It’s the least expensive and most effective medicine there is for content. Think of it as preventative.

Welcome to professional porn. It’s cheap. Just do it as part of your production routine. If you don’t value your content enough to register copyright for it, then don’t expect a judge to value it when it’s stolen and you’re asking him to award you damages.

In the coming year, the German courts will debate whether or not pornography can be considered as an original work of authorship. Seriously!

And the “probably not” camp is winning that debate. If adult content fails this standard, porn may no longer be subject to copyright in Europe at all. This is an issue our trade association better lock in its sights — and fast.

There’s a rising sentiment among senior jurists abroad that filming people having sex on a couch does not require any direction or thought or planning or originality — it’s simply the effort to point and shoot and sell the footage. This is an argument that makes some sense until you visit a shoot and see the mechanical nature of “acting” sexual for the camera, the endless series of takes, the toting of lights, the Viagra and the lube and the douching and the yuk that goes into making sex appear attractive to those who want to watch at a discrete distance.

On the products side, you had better start registering your trademarks this year. For you, the expense is higher than copyright, and the time it takes is longer, but it’s a necessary part of manufacturing an original design. If you value what you create, protect it.

Building a better mousetrap is one thing, but building the same mousetrap for less, using your promotional photos and your descriptive text, as well as your product name and sometimes even your brand name is criminal! Trouble is, it’s almost impossible to fight unless you register your trademarks. Think of it as blood pressure medication. It is just that.

When you find your trademarked product knocked off online, your blood pressure won’t go off the charts because you’ll be able to get the counterfeit products taken down if your trademarks are registered.

Several of the most popular online sales platforms are pushing back against counterfeit claims now — This is a very recent development and a troubling one.

While it’s true that certain rights accrue to you through manufacture of an original product at least locally, the global market is as apt to side with a counterfeiter as they are with the originator when it comes to ownership, unless you take that final step to register your trademark.

It’s taken the industry years to grasp that it’s not the best practice to do business on a handshake. Now it’s time to take the next step. Register your rights as part of your production routine.

The start of a new year is a terrific time for resolutions to change inappropriate behaviors. Take this opportunity to professionalize your operation by taking that final step and registering your intellectual property rights with the government. It’s preventative medicine that could pay you enormous dividends down the road and it’s inexpensive and easy to do once you integrate it into your production routine. If you have to, hire someone to do it for you.

Coming of age in adult is all about professionalization. Make that your resolution for 2015.

There are resources all around you willing to help with that. Join your trade association and ask them for advice. Write contracts. Register trademarks and copyrights. Become one of the adult industry companies that mature gracefully. You’ll be very glad you took these steps in coming years. Start now. Happy new year!

Peter Phinney runs Porn Guardian with business partner Dominic Ford. The company offers a full suite of antipiracy services to the adult industry and currently represents more than 370 individual brands across all content niches.


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