A Long Time Gone; a Long Time Yet to Come

How many of you remember the October 1998 introduction of AVN Online? This column had appeared in Adult Video News for almost a decade by then, starting in 1990 as the Quarterly Legal Update. But so much was going on then – specifically, a litter of federal obscenity prosecutions – that the second Web-focused Quarterly Legal Update was in AVN Online’s second issue. It has been monthly ever since.
Writing a column for this publication began as quite a different challenge from writing for AVN. The AVN audience largely was familiar with the criminal-prosecution risks the industry faced, and most readers knew someone or knew about someone who actually had been sent to prison for obscenity. The audience knew about releases and copyrights, at least in general terms.
When AVN Online was born, it rapidly became apparent the audience was just as sophisticated as the AVN audience, albeit in very different ways. The AVN audience was acquainted with the government's tyrannical approach to erotic entertainment; the endless, nonsensical, IRS-like regulations (particularly for retail businesses), and the general concepts of the adult entertainment business and the distribution of “content” (a then-unknown word). The Online audience’s technical expertise generally dwarfed that of the AVN audience. Both audiences included many college graduates: AVN readers typically majored in business, or perhaps even went to film school; among Online readers, there were a remarkable number of degrees in electrical engineering, computer science and mathematics. There was a canyon separating the two groups: The AVN audience was adult-business savvy but comparatively computer-illiterate, and although the Online audience was generally less aware of the pitfalls of the adult-entertainment business, they were a bunch of computer wizards. Exceptions existed on both sides, of course.
That led to the need for a different education process, both for the author and the audience. For the author, who happens to have a degree in electrical engineering as well as law, it was constant vocabulary lessons from clients and the industry. The reverse was a process of educating the Online audience that was suddenly thrust into the many traps of “adult.”
Since Issue No. 1, the Online audience has become tremendously knowledgeable in adult-entertainment issues – except for some IT consultants who are newbies.
Early in the life of Online, its audience had very little interaction with the AVN audience. The interaction is vast now. At the beginning, most of the content from the adult-video companies in Los Angeles' San Fernando Valley ("Porn Valley" to some) that found its way to the Internet was pirated. Now, the whole thing is integrated.
Back in 1999, the article “Web Legal Content” introduced the concepts of copyright and right to publicity. Another hot topic was covered in “Plastic,” a four-part series about the evolving world and rules of credit-card processing. You may have forgotten this, but in the early days it was possible for adult websites to obtain merchant processing directly from local banks in much the same way as brick-and-mortar businesses did.
In 1999, the industry scored its first victory over the Child Online Protection Act, and all subsequent attempts to enact similar versions of the legislation have been defeated. Recall that COPA generally requires obtaining a valid credit-card number prior to allowing access to adult content. Imagine how different things would be today if COPA had been approved and vigorously enforced! The specter of going to jail for operating adult websites the way they now are operated certainly would have resulted in profound changes, presumably fleeing to offshore locations.
Remember dialers and mousetraps? All are now long forgotten.
During the first 100 issues, one huge concern that has come and gone is spam. Back then spam was just beginning to emerge as a “problem.” It fed the general concern about children constantly being exposed to pornography on the Internet, which was becoming an integral part of commerce.
In proposing the 1996 Communications Decency Act, Senator James Exon (D-Neb.) described the Internet as a “sewer,” referring to adult email and the lack of any barrier between minors and adult material. As affiliate programs began to evolve, so did affiliate spam.
Here’s the thumbnail of the rise and fall of erotic spam: Congress spent years bickering over what to do about it. In the interim, states tried to regulate spam (and online porn, generally). Most of their laws were found to be preempted by the dormant Commerce Clause, a principle holding that Congress’ constitutional power to regulate interstate and foreign commerce – without express Congressional authorization – prohibits states from enacting legislation that improperly burdens or discriminates against interstate or foreign commerce. Most state Internet regulations fell to the same fate.
On the heels of California’s enactment of a law that would have banned commercial e-mail almost entirely, Congress enacted the Controlling the Assault of Non-Solicited Pornography And Marketing Act in late 2003, imposing the current regulations upon essentially all commercial e-mail. Later, after Federal Trade Commission regulations quickly were put into place, additional requirements were imposed upon spam deemed too racy for children. By May 2004, spam suits were not new. A handful of industrious anti-spam people tried to use convoluted constructions of existing laws to collect damages from operators of affiliate programs, and did so with mixed success. However, the FTC was serious, assaulting affiliate programs to the point of executing some without-notice restraining orders, including freezing assets and bank accounts.
The issue, of course, was how affiliate programs would provide a legal defense to unauthorized affiliate spam. While that issue remains judicially unresolved, a funny thing has happened since the FTC’s spam assault: Spam in this industry went the way of the steam locomotive. Spammers were enticed by bigger payoffs from drugs, mortgages, stocks and – what now is the real problem on the Internet – phishing.
And let’s not forget the celebrity sites. Now, everyone knows celebrity photo sites seldom have releases from the performers or the photographers. (Releases from “public figures” are not always needed for paparazzi photos, except for the kind that appear on these sites: upskirt, downblouse and those with a celebrity’s head morphed onto a sexually explicit image of someone else’s body.) But there were people in the early days who claimed photos in their thumbnail galleries were “public domain” because they were copied from the Internet. The issue remains, but readers’ perspectives on it have changed dramatically.
Ten years ago, attorneys who handled copyright cases for Internet clients usually were on the defensive. There were still remnants of the “Wild West”: operators who created websites out of content stolen from elsewhere. Now, most operators acquire their content legally, only to find others have stolen it.
Copyright infringement now is a much greater threat to the online adult industry’s survival than the Department of Justice and obscenity.
Napster and its progeny destroyed the recording industry: From 1996 to 2003, CD shipments dropped 26 percent worldwide. Even after the fall of Napster, one credible source recently reported the rate of Internet file swapping was 1 billion songs per month.
At an adult-video industry summit in Cancun in 1998, this author's prediction that file swapping posed the biggest threat to the adult-video industry drew laughter. But fewer than 10 years later, the threat has become clear. With the popularity of broadband home connections, cheap multi-hundred-gigabyte hard drives and DVD burners, swapping 10-minute scenes and burning homemade compilation DVDs is no challenge.
Even worse, if file-swapping trends follow those in other forms of skullduggery, the source of greatest harm will be in Eastern Europe, where enforcement of intellectual-property rights effectively is non-existent.
Since copyright infringement in the adult industry stands to mirror what has happened in the recording industry, the adult industry should respond by doing what the recording industry did and what Hollywood is beginning to do. The first order of business should be to do something about those claiming DMCA safe harbor, like the emerging adult versions of YouTube or the Yahoo! video-searching function. The second is to sue file-swappers individually.
Website hosts hide behind the Digital Millennium Copyright Act’s safe harbor provision. One of this author's colleagues once commented, “The [DMCA] is a joke!” Something should be done so that these file-posting sites cannot, with impunity, use stolen content to profit handsomely from advertising revenue.
And the industry has no choice but to go after the individual swappers. Sure, you can never get Eastern European or Chinese swappers, but not much content gets sold over there, anyway. Fear must be put into the minds of file swappers in markets such as North America and Western Europe, where those who can’t swap are likely to buy content instead. Being exposed for engaging in the very trendy activity of swapping music files is one thing; trying to explain a lawsuit for downloading porn is something else.
Stand by for the next 100 issues! Plans already are in the works for 100 more “Legal Angles” columns.