Editor's note: AVN Editor-in-Chief Mike Ramone writes a monthly column on issues related to piracy in adult entertainment. This is his January edition.
This month’s column reports on two battles in the adult piracy wars — one a significant industry victory, the other the opening salvo in what will in all likelihood result in another such rout.
The victory belongs to AVN Award-winning Oriental Dream Pictures, which recently obtained a $180,000 cash settlement in a copyright infringement suit against a Honolulu retailer.
One hundred eighty thousand dollars might not seem like all that much, but don’t tell that to ODP's attorney, Clyde DeWitt (AVN’s legal columnist).
“As far as I know, in the history of the adult business, it's the biggest piracy recovery, whether by settlement or judgment,” he said.
DeWitt said he was bound by the settlement not to discuss certain details of the case. But this much he could say: The evidence suggested that the defendants may have sold counterfeit DVDs of as many as 50 ODP titles, both over the Internet and at retail stores in Hawaii.
"What was interesting about this case," DeWitt noted, “is that the defendants apparently were shipping legitimate copies of the DVDs to the mainland, but may have been selling counterfeits both over the Internet to customers in other parts of the world and at their retail outlets in Hawaii to Asian tourists."
Alerted to the apparent piracy, an ODP representative posing as an Asian tourist made undercover retail purchases in Hawaii and arranged for Internet orders from both the U.S. and overseas. The DVDs shipped to the U.S. were not counterfeit, but the others may have been, DeWitt said.
"Although the defendants did business in California,” an ODP spokesman said, “we were required to go to Honolulu to pursue this action, and did not hesitate to do so. We will do whatever is needed to contain piracy of our titles."
As will Evil Angel, perhaps the most aggressive adult company when it comes to going after bootleggers.
In the company’s latest such lawsuit filed in U.S. District Court in Los Angeles, it has named as defendants three Canadians, Alain Elmaleh, Jacky Elkeslassy and Gerald Ouzzan, and five corporate entities, Kaytel Video Distribution, Leisure Time, Canada, Inc., Transworld Sales Agency Ltd., Jacky's One Stop Distribution and Sylnet Distribution, Inc.
The lawsuit charges the defendants with copyright and trademark infringement, alleging that they knowingly engaged in the manufacture and distribution of counterfeit copies of Evil Angel DVDs.
The suit further charges the defendants under the civil provisions of the Racketeer Influenced and Corrupt Organizations Act (RICO) with mail fraud, wire fraud and money laundering.
Elmaleh, owner of Kaytel Video Distribution, says the charges are false.
Evil Angel is seeking an injunction to stop the alleged bootlegging and unspecified monetary damages.
Evil’s attorney, Al Gelbard, said the lawsuit was initially filed under seal to allow company representatives to search the defendants’ various Canadian locales to seize alleged counterfeit products and relevant computer data, documents and electronic records.
Even though it was a Canadian court that authorized the searches, Gelbard said Evil Angel wants to use the seized evidence in federal court in the U.S.
"We’ll be proceeding in Canada to obtain the right to use any evidence seized in Canada in the U.S. actions," Gelbard said. “I think any trial is about a year out."
Sue the pirate bastards tip of the month: This may be stating the obvious, but producers, listen up — copyright your titles! And in a timely manner. “If you don't register the copyrights before the infringement starts, all you can recover is their profits and your losses,” DeWitt cautions. “Well, you got some guy that's selling pirate DVDs, I mean they make these things in their basements and sell them at swap meets, how much profit is he making? … If you don't register the copyrights before the infringement starts, you're not entitled to statutory damages or attorneys fees.” So if you want those deep pockets settlements, boys and girls, register those copyrights.