opinion

Legal Options to Address Pirated Cam Performances

Lawrence G Walters

Many webcam performers have experienced a new trend in online piracy — the illegal recording and publication of live webcam performances. The “business model” is disturbingly simple: sign up to purchase or view a live webcam performance on any number of webcam networks, use current screen capture technology to record the performance, then distribute the performances on numerous pirate websites hosted in some remote jurisdiction. Throw in a remote proxy server for good measure, and start generating traffic to a website populated with stolen performances. Offer a tease of the content for free, and encourage the user to download the entire performance from a file locker for a price.

The webcam performer is victimized because her content is stolen, but the webcam network is also impacted because users can watch recorded “private” performances of their favorite cam stars without paying the typical fee for live viewing. The stage name of the performer and the brand name of the network’s website are often included in the URLs generated by the pirate sites, thus resulting in potential trademark infringement against both parties.

While litigation is expensive and uncertain, permitting rampant theft of copyrighted performances is likewise unacceptable.

So what can be done about this new brand of piracy? The first step is to sort out who owns what. The webcam network’s model agreement will typically state which party retains the copyright to the performances. Most often those rights will remain with the performer, who will provide some sort of license to the network permitting publication. That means the performer is the party that possesses the legal right to take action for copyright infringement. Performers who retain copyrights to their performances typically cannot rely on the webcam networks to enforce those rights. In some circumstances, the performer can authorize the network to take certain steps to enforce his or her copyrights, but not without proper additional agreements or assignments. Only the proper party should attempt to take legal action against a pirate camshow site.

The most common initial response to this type of copyright infringement is transmission of a notification of infringement under the Digital Millennium Copyright Act (i.e., a “DMCA notice.”) Importantly, a DMCA notice is only legally effective when sent to a third-party providing services to the infringer. DMCA notices should not be sent to infringing parties, directly. The intent behind a DMCA notice is to force the online service provider (such as a host or billing company) to stop providing services to the party committing the copyright violation. In the business model described above, the DMCA notice would properly be directed to the file locker providing the file storage and download service, not to the infringing site itself.

When pursuing the infringing party directly, the proper legal vehicle is a Cease and Desist demand (“C&D demand.”) A C&D demand is designed to put the infringer on notice that they’ve been caught, and to demand that the infringing content be removed from circulation. Typically, a C&D demand reserves the right to sue for damages, or seek other remedies, even if the material is promptly taken down.

Both DMCA notices and C&D demands are relatively inexpensive and can often be effective. While the pirate camshow sites frequently hide in jurisdictions with lax copyright enforcement policies, the operators often choose to respond to proper legal notices (sent by proper parties) rather than risk a potential lawsuit. From their perspective, there’s plenty of other content to be stolen, so discretion is the better part of valor when faced with a valid infringement notice.

Naturally, some pirate camshow sites will refuse to respond to legal notices, and call the copyright holder’s bluff. While this can be frustrating, claimants should make sure they have identified all possible service providers for purposes of DMCA notices, including hosts, domain privacy service providers, file lockers, billing companies, proxy service providers, content delivery networks, etc. Loss of essential services can result in quick compliance. Equally important is thorough investigation into all relevant contact points and addresses. A legal notice sent to the correct physical address frequently gets an infringer’s attention.

For some copyright or trademark holders, the filing of a lawsuit for intellectual property theft will be the final solution. While litigation is expensive and uncertain, permitting rampant theft of copyrighted performances is likewise unacceptable.

Lawrence G. Walters, Esq., heads up Walters Law Group and has represented website operators for over 25 years. Nothing contained in the foregoing article is intended as legal advice. Please consult individual legal counsel with any questions or concerns.

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