The digital pirates who steal adult content on the Internet are not only in the U.S.; they are in countries all over the world, and the person doing the stealing could be anywhere from the Ukraine to Brazil to Japan.
"The global nature of the Internet has created a great democratization of communication, but it also has made it a lot more difficult to take measures with infringers," explained Marc J. Randazza, an intellectual property expert and First Amendment attorney with the well-known firm Weston, Garrou, Walters & Mooney and law professor at Barry University in Florida. "That doesn't mean that someone outside of the U.S. is outside of reach, but it will tend to be a lot harder. First, you have to track somebody down in another country — and if you want to bring an action against them in another country, you have to hire a lawyer in that country. Frankly, if somebody is doing this in Russia or China or wherever they happen to be, how much money are they going to have that you can recover in damages? It makes things difficult."
Northern California-based intellectual property attorney Ira P. Rothken said that as much of a headache as DVD piracy has been for the adult industry, online piracy is a more difficult challenge because it is more complicated and harder to prosecute. "DVD piracy is easier to prosecute because people pirating DVDs and selling them off the backs of trucks is a very obvious violation of the law," Rothken said. "But when you compare that to search engines that are linking to both good and bad things without knowing whether something is authorized to be on the Internet or not, that's a much harder situation to prosecute."
"On top of the varying laws and other hurdles that the international nature of the Internet causes, it also makes prosecution impractical in jurisdictions that are hostile to American law," Rothken added. "Most organizations that are doing lawful business in the U.S. don't have the resources to prosecute a case against infringers in China, for example. It isn't economically feasible. Unfortunately, it takes a large amount of infringement to occur before it can be economically viable for an organization in the U.S. to even think about prosecuting an international case."
One protective measure that adult webmasters have been taking is the use of digital rights management (DRM) programs. But Randazza explained that all over the world, there are young, tech-savvy pirates who don't consider DRM a strong deterrent. "Any time you institute a technological block," Randazza said, "a 13- year-old kid somewhere will have cracked it within 15 minutes. Let's say that you have a 20-year-old in Nigeria who has stolen terabytes of content and has been republishing it — let's say you do catch him: What are you going to do? It really puts you in a position of impotence. Combating piracy on the Internet is going to take innovations beyond DRM measures."
Randazza, Rothken and EroticUniversity.com President Jeff Booth all told XBIZ that because online piracy is so easy and so widespread, adult webmasters should not only think in terms of legal and technological solutions — they must also think in terms of business and marketing solutions. Randazza said that if adult Internet companies brand themselves really well and don't rely on content sales exclusively, online piracy won't be as painful.
"I think that adult companies should look more into branding and merchandising to make their profits, which is more difficult; it takes more capital and more investment in infrastructure, but it certainly is a good way to insure that pirates are actually doing your work for you rather than stealing your profits from you," Randazza said. "Companies that don't understand branding their trademarks are going to be the companies that will suffer the most from copyright infringement."
Rothken said that adult webmasters also need to make branding and merchandising a high priority, adding that webmasters can lessen the effects of digital piracy by serving as not only content sites, but as social networking sites, as well.
"I think that adult websites that do not rely upon pictures and video alone are better positioned," Rothken asserted. "Adult websites that integrate some social networking functionality or that integrate live streaming and other value-added features that go beyond just merely posting short clips or pictures are the ones that are best situated against international piracy. There is very little barrier to entry for a pirate site to create a clone site with pictures and video, but it's another thing for a pirate site to create a social-networking site that has credibility and provides value-added services that go way beyond just run-of-the-mill video and pictures."
Booth pointed to the popular Australia-based AbbyWinters.com as an example of an adult website he thinks has branded itself extremely well and is therefore less likely to be significantly harmed by the effects of digital content piracy around the world.
"The AbbyWinters.com website is very personality driven," Booth noted. "So people get involved with the girls and their lives. AbbyWinters.com has kind of created its own porn community, and having that type of site — a personality-driven, community type of website — is one way to keep theft and piracy from having a major impact on your business. You need to create an experience where people will want to keep coming back and will get involved in whatever is going on with the site. People are still going to steal content, but I think it has less of an impact with that type of site because a lot of what is stolen makes people want to see more of the girls and more of the website."
Too many adult webmasters, Booth said, are making it easy for pirates all over the world to steal their content. "A lot of adult webmasters have sites that are just open portals," Booth said. "It amazes me. Any teenager can run a screen-grabbing utility and take everything off of their sites. People who want to steal material can run a screen-grabbing utility, come back a few hours later, and they have a complete mirror of an adult website."
Booth also pointed to another problem that lies beneath the rampant theft of content online.
"One of the problems is that all over the world, including the U.S., there is a growing culture of people who don't respect intellectual property rights," Booth said. "The mindset is that everything should be free. I don't understand that mindset, but it's a mindset that you can't break."
Los Angeles-based First Amendment attorney Gregory Piccionelli noted that when it comes to combating digital piracy in other countries, adult webmasters in the U.S. have some international protection thanks to the Berne Convention for the Protection of Literary and Artistic Works — an international agreement on copyright protection that came about in Berne, Switzerland back in 1886, and according to the World Intellectual Property Organization (WIPO), now includes more than 180 countries.
For over 100 years, the U.S. refused to sign the treaty, fearing that doing so could undermine American sovereignty in the area of copyright. But the U.S. finally became a signatory to Berne when Congress passed the Berne Convention Implementation Act of 1988 — and that means that theoretically, anyone in a country that is part of Berne must respect American intellectual property rights.
"The Berne Convention gives citizens of the U.S. and any other country that is a signatory the right to enforce their copyrights in any of the signatory countries," Piccionelli explained. "So if you have copyrightable work in the U.S., you have the right to enforce your copyright in any of the Berne countries. But the problem — the devil in the details — is in enforcing those rights. The problem isn't acquiring those rights; the problem is enforcing them. And different countries have different regimes for enforcement.
"For example, China is a signatory to the Berne Convention, but even Microsoft, Warner Bros. and Paramount have a hard time getting China to cooperate in terms of enforcement of copyrights."
Piccionelli predicted that in the near future, there will be an amendment to Berne specifically addressing online piracy.
"There is hope of the U.S. working with foreign countries to develop an amendment to the Berne Convention dealing with the new online reality," Piccionelli said. "I'm confident that sooner or later, there is going to be some international cooperation in this area — just how much and how soon, I can't tell you."
Piccionelli noted that if an adult webmaster finds a particular country to be especially problematic when it comes to digital piracy, it is possible to make his or her sites unavailable in that country — but he quickly added that the growing popularity of video-sharing websites complicates matters.
"There are methods now where you can geo-prohibit distribution of content on the Internet into certain countries," Piccionelli said. "You can not allow certain servers because of their IP address, but the problem is that somebody can steal your content and put it on a tube site in a country that has no geographic prohibition, and then all of a sudden, your content is in the country where you had the geographic prohibition. So that's why online piracy is a problem not currently amenable to a simple solution, and the adult business is not alone in having to deal with that problem.
"Hollywood, the music industry and the computer industry are all having to deal with the problem of intellectual property theft over the Internet in foreign countries."
Intellectual property attorney Anna M. Vradenburgh, who is a senior partner at Piccionelli & Sarno, cited Australia as an example of a country that has been especially proactive when it comes to fighting piracy of adult content.
Unfortunately, she said, there are many digital pirates who believe that being thousands of miles from a webmaster protects them from the possibility of prosecution.
"A lot of it is the basic issue that people think they can hide," Vradenburgh said. "They think, 'I'm in Finland, so come get me.' But I think that a lot of governments are realizing that it isn't just Americans who are going to be losing money from piracy — their own people are going to lose money."
Randazza stressed that as rampant as online content piracy is in 2008, it doesn't have to be the downfall of the adult Internet — and he is confident that in the future, adult entrepreneurs will come up with business and marketing solutions that will make international piracy on the Internet a lot less harmful to the adult industry.
"I don't think that piracy is a hopeless battle," Randazza asserted. "The adult industry is so full of independent-thinking, entrepreneurial-thinking people, I would be shocked if it took very long for that collective community to come up with some brilliant way to make piracy obsolete — or at the very least, not worth the risk. Digital piracy is only going to get worse, but there is always a way to add value to your content that a pirate can't deliver. Ultimately, capitalism will find a way to solve this problem."