Why Haven't Adult Video Studios Sued the Pants Off the YouTube Clones?

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Why Haven't Adult Video Studios Sued the Pants Off the YouTube Clones?

Mon Nov 19, 2007 @ 12:42PM PST

Posted by Matthew Belloni

YoupornThere's an interesting piece in this month's Portfolio magazine on the rise of X-rated user-generated video websites and the corresponding decline in DVD and subscription  revenue at traditional pornography studios. Writer Claire Hoffman Pornotube_logotracked down the owners of YouPorn and PornoTube, two sites with huge traffic. And she spoke with Vivid Entertainment honcho Steve Hirsch, who says that DVD sales, once the company's cash cow, are down almost 50 percent since 2004. He also says that the proliferation of free YouTube clones that let users post both copyrighted porn and their own homemade videos are grabbing significant market share from Vivid, the industry leader, which specializes in high-end sex films.

Sound familiar? It's the same problem the traditional movie studios are complaining about -- and which led to Viacom's pending $1 billion lawsuit against Google over YouTube. But it's far worse, the article says, because the free sites often are competing directly with the producers' subscription sites and it's even more difficult to police which clips are being uploaded improperly.

So what are the professional smut peddlers doing about it? Not much, it seems. From the story:

But for now at least, there's no significant push to shut down the sites. Although producers in the Valley have largely resigned themselves to the fact that the copyright genie is out of the bottle, they are putting user-generated sites on notice about former moneymaking features that are now posted for all to enjoy. A few major porn companies say they regularly monitor postings on PornoTube and YouPorn and email requests to take down copyrighted material. In July, Red Light District sent a cease-and-desist letter to YouPorn after a user posted "One Night in Paris," the "official" full-length version of the Paris Hilton sex tape, which Red Light distributes. YouPorn removed the video.

That's odd. No court has ruled on the legality of user-generated video sites that simply remove copyrighted clips when asked, but it would seem that the porn studios have at least as good a case as Viacom (assuming you believe there's at least an argument that the Digital Millenium Copyright Act takedown rules aren't sufficient to deal with the YouTube nation we've become). And there's another layer of potential liability here: age verifications.

If anonymous users post child pornography, it could be difficult for site owners to verify the ages of the performers. While these sites generally require viewers to confirm that they are over 18, "my 11-year-old could go on at any point," says Red Light's Joseph. Earlier this fall, a German Internet provider temporarily blocked access to YouPorn because the site didn't comply with German age-verification laws. Up to now, U.S. user-generated porn sites have not been prosecuted."

The big porn producers say they go to great lengths to get age verification forms -- known as "2257's" in the industry to correspond with the applicable federal code -- for every performer. The websites say they have a staff that tries to verify ages and that the community often polices itself.

It's this potential liability that caused Vivid's Hirsch to pass when YouPorn's mysterious co-owner Stephen Paul Jones offered to sell the company for a mere $20 million. Seems to me like a smart move. If there's one thing the courts and the federal government like less than copyright infringement it's the prospect of a company profiting handsomely from unauthorized (and possibly underage) pornography.

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The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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