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YouTube's Porn Policy Might Land It in Legal Trouble

YouTube's Porn Policy Might Land It in Legal Trouble
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Jul 31, 2008 9:00 AM PDT    Text size: 
CYBERSPACE — How hard is it to find porn on YouTube? Hard enough that the Internet giant might be inadvertently opening itself up to increased legal scrutiny.

Blogger Jason Lee Miller of WebProNews noted that adult content is remarkably hard to find on YouTube, despite the thousands of video uploads the site gets every day.

"I allotted myself 10 minutes this afternoon to find some [porn on YouTube] — out of strictly journalistic curiosity — and there wasn't any," he wrote in a recent blog. "And 10 whole minutes, from what I gather from some pervy friends — graphic designer types I work with — should be plenty of time to find some porn on the Internet."

A brief YouTube search for basic adult search-strings returned hundreds, if not thousands, of adult preview videos, but none of the videos included any explicit content or nudity of any kind.

Such content is consistent with YouTube's terms of service and apparently monitored by YouTube's user community. Most adult-oriented videos are prefaced with a warning that "This video or group may contain content that is inappropriate for some users, as flagged by YouTube's user community." Users must be registered members to look at videos with such restrictions.

Nevertheless, explicit content can't be found on YouTube, which recently drew legal fire from telecom giant Viacom. In a multibillion-dollar lawsuit, Viacom has accused YouTube of allowing copyrighted content to proliferate on its site. YouTube has maintained that it can't monitor all of its content, and as such, the company only sells advertising on videos submitted and approved by outside companies – a piddling 4 percent of its total traffic.

But if copyrighted content is so hard to ferret out, why does explicit porn — and only explicit porn — disappear from YouTube with great speed?

That contradiction has the potential to expose YouTube to greater scrutiny and more legal trouble, according to adult industry attorney Rob Apgood.

"They're responsible for the content that's on their servers," Apgood told XBIZ. "They can stop people from uploading anything. To throw their hands up and say they can't control it is rubbish."

Industry attorney Jeffrey Douglas agreed. He told XBIZ that a copyright claim gains power depending on how much editorial control a site has over its content.

"It may be harder to recognize copyrighted content versus whether someone's genitals are exposed," Douglas said, adding that such an argument loses power in light of how easy most copyrighted videos are to spot.

"We're talking about TV shows, movies — high-profile stuff here," he said.

Such analysis can be found outside the adult industry, too. In an FCC-sponsored hearing last week, billionaire Mark Cuban observed that YouTube seems more than capable to enforce antiporn policy while letting copyrighted content onto its site. Cuban, who co-founded HDNet and owns the NBA’s Dallas Mavericks, once said that YouTube would fail because its business model is based on copyright infringement.

“[YouTube will be] sued into oblivion,” Cuban said. “They are just breaking the law. The only reason it hasn't been sued yet is because there is nobody with big money to sue.”

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