Webmasters v. Acacia

Gretchen Gallen
SAN FRANCISCO, Calif. – Contrary to popular belief, what many people hoped would be the first round in a down-and-dirty counter-suit between a group of webmasters and Acacia Media Technologies was just a private conference call between lawyers and the judge assigned to the case.

Judge James Ware of the Northern District Federal court, who replaced Judge Alicemarie Stotler last week, led the counsel-only conference call today to discuss scheduling and procedural details regarding the case's discovery process.

The phone call took place between lawyers representing Acacia and Boston-based patent specialist Fish & Richardson, representing the defendants in the case.

A source told XBiz that a date was set for Nov. 21 for an informal hearing between the judge and lawyers in the case and those litigants who choose to appear, although no substantive issues will be discussed. The location of the informal hearing has not yet been disclosed.

XBiz spoke with Spike Goldberg of New Destiny/Homegrown who along with his partner Greg Clayman, president of Video Secrets, sounded relieved that the case was finally moving forward, however uneventful today's conference call may have been.

"Now we can finally get into this tooth and nail," Goldberg told XBiz. "Acacia is attempting very hard to convince people in the industry to license with them, but I'm glad that a lot of the things that Acacia says and does will finally have to be looked at closely by a judge. In the end, it all comes down to who wins or loses. Nothing really matters in-between."

The counter-suit against Acacia was first filed in February of this year on behalf of a group of webmasters passionate about contesting Acacia's patent claims on streaming audio/video technology.

Several of the original counter-litigants have since settled with Acacia, however, the ones that remain include: New Destiny/Homegrown; Ademia Multimedia; Audio Communications, owner of Webmaster Paradise; CyberHeat, owner of TopBucks; GameLink; Lightspeed; VS Media, owner of Video Secrets; and Innovative Ideas, owner of Adult Revenue Service.

Last week, the Adult Entertainment Broadcasting Network (AEBN) formally tossed its name into the ring with fellow webmasters who refuse to believe that Acacia wields as much patent power against the adult entertainment industry as they are claiming.

Considered industry-wide as one of the largest providers of adult video content on the Internet, AEBN joined forces with the Defense Group and the Internet Media Protective Association (IMPA) against Acacia.

IMPA has been a resource organization for webmasters taking a stand against the patent holder. IMPA is also dedicated to confronting a variety of other issues facing the adult industry and serving as an industry watchdog.

And while there is certainly no shortage of support for those companies that have chosen to go to bat for the sake of the entire industry, there is also no certainty that they will win after industry heavyweights Flynt Publications, Vivid Entertainment, and Wicked Interactive determined after a lengthy review period with patent attorneys that Acacia's patents were valid and strong enough to license and not resist.

Since July of this year, Acacia has been holding adult website operators and affiliates liable for the use of its streaming media technology. However, according to AEBN, the validity of Acacia's patent claims remain to be proven in a court of law.

"We would like to assure the adult community that we are resisting Acacia's patent claims," AEBN President Scott Coffman said in a statement. "We feel that challenging Acacia's claims are in the best interest of our industry."

In the meantime, Goldberg and Clayman are prepared for a long and potentially expensive fight against the patent holder.

"One of the things that this whole issue with Acacia has managed to do is bring the industry closer together," Goldberg told XBiz. "I think that Acacia really underestimated us from the beginning and never thought that we would stand up and fight them on this. But we're sticking together on this one."