XHC Piracy Panel: Fight For Your IP Rights
The session opened with brief addresses from each member of the panel, which included Andrew Stoddard of Hush Hush Entertainment, Jason Tucker of Falcon Foto, attorney Rob Apgood of CarpeLaw.com, Diane Duke of the Free Speech Coalition, Fiona Patten of Australian adult trade group the Eros Association, and attorney Greg Piccionelli of the law firm Picionelli and Sarno. XBIZ Publisher Tom Hymes moderated.
In their opening remarks, the panel focused on communicating the grave threat that the current state of widespread piracy of adult content presents to the industry at large.
“We’re just around the corner from a complete collapse of the recorded adult entertainment market unless we do something about [piracy],” Picionelli said. “We’re at the eleventh hour and the 59th minute.”
Picionelli advocated an aggressive enforcement campaign, including going the route favored by the Recording Industry Association of America (RIAA) in its anti-piracy effort — filing actions against end users for infringing on the copyrights of adult producers.
“People who consume stolen content don’t generally like to have that fact come out into the open,” Picionelli said, adding that such people will probably like being exposed as thieves even less when the stolen content in question is sexually explicit.
Next up was Apgood, who emphasized the importance of registering copyrights for all your content prior to putting it into distribution.
“If you don’t register your copyright, I might be able to show actual damages,” Apgood said. “But that damage might be $200. If you register the copyright, I can get you $150,000 per infringement in statutory damages.”
Patten spoke next, and discussed the vigorous anti-piracy effort underway in Australia, where she said that three-quarters of the adult product sold in Australia is pirated content, most of that physical media like DVDs. Patten also cautioned the audience that widespread enforcement brings with it a hefty price tag.
”We’ve spent approximately $4 million to enforce copyright in Australia, and we’ve claimed maybe $2 million back in damages.” Patten said, adding that the damages won in court were only part of the benefit of the enforcement effort, as piracy is on the decline and sales of legitimate adult product are rising in the country.
During her remarks, Patten mentioned that the efforts underway in Australia have put a number of infringing companies into bankruptcy — a fact which Apgood said absolutely should not give pause to any company considering filing a lawsuit to enforce its rights.
“What does it tell you when you’ve put an infringer into bankruptcy, that you’re a mean, bad person? No — it tells you that the only thing keeping them out of bankruptcy in the first place was selling your content,” Apgood said. “Once we start putting more people into bankruptcy, it will send a message to the other thieves: ‘we’re going to bankrupt you, or take everything you own.’ That’s the best deterrent there is.”
Stoddard and Tucker spoke about a new for-profit company they have started with assistance from Apgood, called PAK Inc. Asked why they undertook the endeavor, Tucker supplied a simple and direct reply.
“A thief is a thief and a scumbag is a scumbag,” Tucker said. “Put bluntly, if you steal my shit and you have any money, I’m going to take it, because that’s my right.”
Tucker said that when his company first started strongly asserting its copyrights and filing lawsuits, they took some heat from within the industry from people who asserted that it was bad, or at least impolitic, to sue their peers within the industry. Now that the effects of piracy are being felt industry-wide, however, Tucker said more and more companies are beginning to see it his way.
“Falcon had a lot of years for our content to be viraled-out,” Tucker said. “I think now the industry has caught up, and they’re feeling what we were feeling about four or five years ago.”
Stoddard decried what he described as a culture of permissiveness that exists within the industry, particularly where well-liked companies and individuals are concerned, and the knee-jerk support that is sometimes granted to such people.
“There’s this ‘old-boys’ network that exists in this industry,” Stoddard said. “You have people who think it’s OK to steal my content and make money off of it, and that’s bullshit.”
Duke focused on proactive measures the industry can take against piracy, and expressed optimism that the industry can unify to combat the problem.
“I’ve heard over and over again ‘you can’t organize the adult industry,’” Duke said. “No, I can’t — but the industry can organize itself around an issue. We’ve seen that with .XXX, and we’ve seen that with 2257. We can do the same thing surrounding piracy.”
Duke also discussed a new educational program that FSC is undertaking in conjunction with the Global Anti-Piracy Association (GAPA) called “Anti-Piracy 101” which will take place at three upcoming industry events; the Phoenix Forum in March, the XBIZ Summer Forum in July and Internext Expo in August.
The Anti-Piracy 101 program will instruct attendees on a range of items, Duke said, including how to file a copyright, how to send proper take-down notices and cease and desist letters, and how to track pirated content.
Following the panelists’ opening remarks, it didn’t take long for the atmosphere in room to become charged. Speaking from the audience, Sean Christian of AdultFriendFinder.com pointedly asked Tucker to address the issue of companies that advertise on sites that carry copyrighted material, effectively inviting Tucker to voice his criticisms of AFF. Tucker responded that while he was not going to engage in “AFF-bashing,” it was his belief that knowingly advertising on sites that carry pirated content was wrong, and he had closed his affiliate program with AFF because he felt the company was putting money in the pockets of content thieves.
“I’m not going to tell anybody how to run their company, or who they can or can’t buy traffic from,” Tucker said. “But I’m not going to do business with people that I believe are supporting piracy, and maybe other people in the industry feel the same way.”
While that exchange of remarks largely remained cordial, some back-and-forth between Christian and Stoddard, and later, Christian and DJ Airek of Shane’s World, took a decidedly harsher tone.
Stoddard asked Christian “How do you sleep at night knowing you’re supporting people who take money out of my pocket?”
Christian’s response was that while he wished that all high-traffic sites respected copyright, the reality is that currently the highest-traffic sites in the space are largely tube and torrent sites, and in order to be competitive, AFF has to advertise where the traffic is.
“If I don’t buy that traffic, my competitor will,” Christian said.
Stoddard dismissed Christian’s explanation as “bullshit” adding that "everybody’s doing it" is not an excuse that he is receptive to.
Christian later asserted that members of the panel, Shane’s World and XBIZ itself were engaging in outright hypocrisy, and referred back to the XBIZ Summer Forum to make his point.
Christian noted that at the XBIZ Summer Forum, “There was a DJ spinning mash-ups at an XBIZ event at the Hard Rock Hotel, and that DJ was an employee of one of the companies on this panel,” insinuating that copyright violations had taken place as a result of the DJ’s performance.
DJ Airek rose from the crowd to directly respond to Christian’s criticism, saying “I’m the guy you’re talking about, and I think you’ve put your foot in your mouth here.”
Airek observed that his entire record collection was purchased legally, that the Hard Rock pays a massive amount of licensing fees to ASCAP (the American Society of Composers, Authors and Publishers) and BMI (Broadcast Music Incorporated), and that he had not been compensated for his performance at the show.
“Everything about that was 100 percent legal,” Airek said.
The sometimes pointed disagreements aside, the one thing on which everyone could agree is that it is crucial for the industry to act now to combat the rampant content piracy taking place across the globe.
As Duke put it Wednesday, “You can’t afford not to do something about this.”