Copyrighting Porn: A Guest Post

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute; and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues; today, they write about the challenges faced by the porn industry. This entire post — even the links — has been deemed safe for work.

Copyright Infringements in the Porn Industry
By Kal Raustiala and Chris Sprigman

The Internet is a copyright-infringement machine. That truth is nowhere more obvious than on YouTube, the well-known “user-generated content” site owned by Google, on which millions of short amateur videos are offered for free viewing, along with many more ripped from commercial – i.e., copyrighted – songs, motion pictures and television shows. Big media companies tend to hate YouTube for this reason. Indeed, back in 2007, media giant Viacom sued Google and YouTube for copyright infringement.

But are content providers really harmed by short YouTube videos? Some people may catch the latest bits from The Daily Show on YouTube rather than watching Viacom’s Comedy Central. Yet there are probably just as many whose love for The Daily Show began with YouTube clips. Viacom benefits from the increased viewership and cultural buzz that the clips create. Thought of this way, YouTube clips are like ads for Viacom shows-and free ads at that.

Whether harmful or not, YouTube’s success has unsurprisingly led to imitations. Among them are the hugely popular “porn-tube” websites like youporn.com, xvideos.com and pornhub.com. These aggregate short clips of both amateur and commercial pornography, posted by the site’s users. Like YouTube, a tremendous amount of content is made available for free. But there are important differences between YouTube and porn-tube, beyond the fact that the people featured on the porn-tube sites are naked. The effect of these clips on the porn industry is clear-and profound.

The biggest of the sites, Pornhub, is currently the 53rd most heavily trafficked site on the Internet. By contrast, CNN.com is No. 59, the website of the New York Times is No. 96, and vivid.com (the site of the best-known high-end porn producer in the U.S.) is No. 19,543. (YouTube is no. 3.) Sales of porn DVDs are collapsing, and the revenues of subscription-based porn sites are drying up. Vivid did sue one of the porn-tube sites for copyright infringement, but that suit was dropped in 2008 and the targeted site continues to operate. There is some talk within the porn industry of a coordinated litigation strategy a la the recording industry’s campaign against Internet file-sharers. But there are other insiders who note that copyright suits have done little to stop the implosion of the major record companies, and who despair of any litigation-based solution. And, unlike the record industry, pornography producers have shown no interest thus far in suing their customers for illegally downloading porn. The industry has preferred instead to appeal to customers’ better instincts – in this video, for example, a group of porn stars pleads with customers not to use the porn-tube sites.

The travails of the porn industry give us a chance to think afresh about how creative industries are impacted when technology makes unauthorized copying ever easier and copyright law increasingly irrelevant. The typical story about intellectual property rights – in this case, copyrights – is that they are necessary to protect investments in the production of creative works. If others are simply free to copy, then the originators will find it impossible to recover their investments. If you want creativity, the story goes, you have to stop copying.

As we’ve shown in our previous posts, however, this is not always true. Fashion designs get knocked off regularly, and yet the fashion industry continues to produce thousands of designs a month. Chefs have no protection over their recipes, yet food in America keeps getting better, more varied, and more creative. Perhaps, as we suggested above, YouTube clips serve as free advertising for regular TV shows. The point is that copying does not always kill the creative goose. The interesting question is why it sometimes does and sometimes doesn’t.

We don’t yet have an answer for the porn industry. But here’s a prediction: the porn-tube sites are here to stay, and yet many, many people and companies will continue to produce pornography – even in the face of virtually uncontrolled copying. Like it or not (and we’ll leave the morality of this subject to others), there is huge demand for porn. And although we are not economists, we feel safe in saying that where there is demand, there will be supply.

This is especially true now, because the cost of producing porn has fallen so precipitously. Anyone with a video camera, a bed, and some willing amateurs is now in the business. If you want to get fancy, you can even edit and add music with software programs like FinalCut.

What’s true of porn, moreover, is true elsewhere. Technology has made copying far easier. But it has also made producing content far easier. Music used to require elaborate studios and expensive engineers; now laptops make recording at home a breeze.

In short, the porn-tube sites probably won’t kill the porn industry. But they will change it. Production is likely to shift even more from “features” to short porn-tube-friendly clips. At the moment, the commercial porn industry, concentrated in L.A.’s San Fernando Valley, turns out more than 1,000 new feature films every month. This model probably cannot be sustained in a porn-tube world. Pornography is, in large part, a utilitarian product, and for most consumers, the purpose for which it is employed is served just as well by a five-minute porn-tube clip.

We can imagine at least two distinctive strategies emerging that will allow porn producers to survive in a market ruled by the porn-tube sites. The first would be to go upscale — to build a porn-industry brand by associating it with highly-paid stars and high production values. (CNN recently reported on a $4 million 3D porn film about to commence production.) And then diligently send legal notices and sue to keep your content off the porn-tube sites. Large, successful producers like Vivid seem already to be following part of this course. Vivid has two full-time employees sending out hundreds of notices every month demanding that porn-tube sites take down their copyrighted content, and they, along with several other large players, have discussed coordinated copyright lawsuits.

The other strategy is likely to be a much more significant part of the porn industry’s future. Many producers will take advantage of falling production and distribution costs to produce a huge amount of pornographic content catering to every imaginable sexual taste. Revenues may come from banner ads, or from click-throughs to sites offering services, like live chats and video on demand, that cannot easily be copied. The commercial producers will compete with amateurs, and also with entrepreneurs who use porn clips as advertisements for other, more highly paid services – for example, already many porn actresses use clips to attract clients to their more lucrative work in strip clubs. In any case, the pornography business is likely to become progressively lower-margin and competitive. Consumers will pay less, and get more.

Of course, whether any of this is desirable depends on your point of view about the morality of, and possible social harm caused by, pornography. But that’s a completely different set of arguments from the one that animates intellectual property law. The rise of the porn-tube sites may be the end of copyright as a way of structuring the pornography business. But, for better or worse, it is surely not the end of pornography.


Vikram

"Pornography is, in large part, a utilitarian product, and for most consumers, the purpose for which it is employed is served just as well by a five-minute porn-tube clip." I shall read this line whenever I need a good laugh. Nice one. As my friends say naaaice one

Kyle Swenson

I had never thought about copyrighting issues involving porn videos before but i dont think that it will harm the industry in any real way, The porn industry more then any movie or television company i think would be able to manipulate short clips leaked onto sites to boost their own profit further down the line. I dont think that their will be much competition between the porn industry and independant people because as said in the article the sexual tastes of people are very varied so the Companies can still create content that people will not be able to find in full at other places. All in all this kind of thing looks like it will overall boost the pornography business then harm it in any significant way

PaulD

The "morality of porn" is not incidental in this whole story insofar as it seems rather evident that the reason the porn producers are not being as aggressive as mainstream Hollywood is that they fear a "who are you guys to be preaching to us" response. As a Christian I would like the porn business to go under; as a resident of Van Nuys I realize that our local economy would suffer if it did.

GucciNorth

The general problem with the porn industry and this article is that no one is actually going to take this plead into consideration. Why go out and buy porn videos at a store when you can get it right on your own computer without moving an inch? Also, people are more convinced about the fact that they don't even have to pay if they go through the internet. It's so easy to just find free porn whether it's a whole video or not. Putting in a wrong letter to an intended site will open up a porn site (most of the time). Porn through the internet is easy access. Viewers are not going to care if the performers are not getting paid...they'll just think it's not a real job anyway. It's not their fault that the performers videos were leaked and so they just use it to their own advantages and convenience. At the same time, the video above was the most atrocious thing ever made. It just makes people want to go on sites even more only because the video is a joke. It's not convincing and the actors are making a fool of themselves by doing it.

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Mz. Randolf

The biggest problem with the porn industry is that much of the material is free. The well established "Porn-Tube" sites further promote the viewers to access the content for free. And if it's for free, who would waste his/her money and pay for it? On top of that, pornography producers have no interest in suing those who watch the material for free and therefore, there are no consequences. The audience has no incentive to pay.

Unfortunately, those who put in the time and effort to create this films suffer financially. But would they rather express their ideas to a public? Or simply keep their artistic talents to themselves and redirect it to other areas of film making or advertising?

The core of this problem is the internet. Ironically, the internet is also the culprit for the video's networking and publicity.

Seeing as the demand for porn is so high, there will always be a group of directors, producers, and performers who will be willing to supply.

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Rich

It would be an interesting comparison to see what happens with porn and the Internet contrasted with its evolution after the videotape revolution. Both the Internet and video made it cheap to produce and copy (relative to film) movies. It will be the Rollergirl scene from Boogie Nights all over again.

dude

I'll admit to having indulged in a bit of this sort of thing at certain points in my life. I think the obvious difference between the "youtube-like" sites and the commercial ones is that most (not all but most) of the stuff on youtube-like sites is user generated, and the stuff that is not user generated tends to be planted by different sites as a teaser...in order to get you to pay for their stuff. Im sure there are instances where there is pirating going on (and i've never visited the specific sites referenced in the article), but for the most part this does not seem to be the case.

So really what we're talking about is not a copyright issue, but a business model issue. homegrown v. corporate. Its not a new story, just different players. While there are copyright issues involved in the music industry, i would argue that their problems are really much more closely tied to the very same business model issue.

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juda

the moral / sociological impact of the product does effect the discussion since as you pointed out "If you want creativity, the story goes, you have to stop copying" the purpose of copyright laws is to give incentive to the artists to continue to innovate there ideas so if our society feels that we do not want to promote making porn we simply don't protect this kind of intellectual property.

Summers

The pr0n producers will no longer have the Miafoso control on the movies. This is probably good for the girls, but ultimately will bring many more people into this market.

Howard

I think it should make *some* difference (at least in court) that unlike YouTube, most porn tube sites make no effort at all to comply with the DMCA and to thereby qualify for the statute's safe harbor provisions.

For example, most porn tubes never register a DMCA compliance agent with the U.S. copyright office, and they rarely (if ever) adopt and "reasonably implement" a policy that "provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers" as required under 17 USC ?512(i)

I guess what I'm saying is that where the question of the efficacy of targeting porn tube sites with legal action is concerned, the jury hasn't even yet convened, much less been let out.

Dr. Strangelove

YouTube is also significant as a forum for the distribution of amateur pornography, It is taking the production of erotic out of the hands of the industry and putting into our own hands,

I briefly explore the relationship beween amateur erotica, YouTube, and women in the new book, Watching YouTube: Extraordinary Videos by Ordinary People (University of Toronto Press, 2010).

Dr. Strangelove
University of Ottawa

Pornster

Lol at high end porn. And haha at porn vids being loss leaders for starlets exotic dancing tours. Pretty much everyone in the industry knows that the tours are just window dressing for escorting. 5-1600 an hour to sleep with a "star" is much better $ than what Spitzer was disgraced for and much more for 3-5 hours to shoot in porn valley.

The real problem of porn is that it's driven by hardcore customers with mainstream folks being on the fringe. The core audience uses the upload/download sites and torrents to get the latest releases in high quality, not flv files on the tube sites. These academics don't get it

Thalia

I'd think that suing porn consumers would lead to very quick settlements. I'm now tempted to create a company expressly to enforce copyright against porn consumers with a particularly lurid name, just so people will worry about the search results popping up. I can't imagine people would want to hear this question at a job interview: "So, I see here that you were sued by the Hardcore Porn Group Against Freeloading Kinky Bastards."

paterick

I don't think porn is gonna deserve the protections that music and movies do.

People don't need to listen to music, they don't need to watch movies ... they need to get a nut. That simple.

Besides movies and music are event entertainment made portable. Porn...not so much.

People only ever bought porn as much as they did because that was the most convenient way. There's no concert that'll make up for sales...it's just the way it is.

harry

Really the only downside to watching porn on the net is that you're more than likely going to contract a virsus---one that will last the lifetime of your PC. Sometimes, you can catch something quite lethal as well (at least lethal for your pc)

Oh yeah, Ummm, isn't this article a tad late? should of been written in 1994-1995.

Jay

From what I understand, the vast majority of the porn on the internet is amateur porn, and not just because of the low production cost. People demand it because they think it is more authentic or real (and it probably is). The same thing is happening to the music industry, more people are listening to music than ever before, and many are paying for it. It's the record labels that are suffering, and maybe the larger acts that were protected by the barriers to competition in the past. The same thing will happen in porn. The major studios and the major stars are going to get hurt, but the porn industry as a whole is going to thrive, driven by the independent acts.

Lindsey

As a woman, the trend toward short, porn-tube friendly clips as opposed to features is especially disheartening. In my experience, women tend to enjoy feature length porn more than short clips that get straight to business.

I wonder if women will feel even more estranged from the porn industry if it goes in this direction? I'm sure some companies will continue producing high-production-value porns but porn prices are already really high for good stuff. I imagine that as feature-length films become more and more specialized, the more high-end movies will become totally unsustainable.

Carlton

The difference between the fashion industry and the music or video industries is in the type of products they produce.

Fashion designers (and chefs) create products and receive compensation for them; its the ideas or concepts that are stolen and must be reproduced. A designer that creates 1000 new designs will still receive payments for those designs. Any reproductions still involve work to create, so at the root it is only the idea that is stolen, not the actual product. The price might be diluted a small amount with the reproductions, but there is status gained by the consumer from having the original design (or eating at the chef's restaurant), and that prestige keeps the prices high and the original products being sold.

For music or video it is a totally different model and so the effect is the opposite. With today's technology the original can be copied with no loss of quality and very little effort and distributed widely. The end consumer receives the exact same product, but there is no prestige effect to keep the originals being sold at the same rate and price; there are exceptions, with collectible type items or other harder to reproduce items that add on to the actual video or music, but these are rare. And at the same time in most social circles there is only a slight-to-none stigma associated with "pirated" materials.

These difference show why it is easy for the fashion or chef industries to survive with knockoffs and copiers, but why the music and video industries are suffering.

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from the industry

There's a lot of misinformed opinions in these comments. Take it from someone who works in the promotional side of the adult industry. Things are getting very very tight and profits are diving massively in all sectors.

People like to think there is no ill effect to come from supporting the tube site model, but in reality this thievery is causing a huge impact on the producer's bottom-line, and having been in the industry for almost a decade I have never seen so many companies fold as I have in the last couple of years. 2010 is going to be a rough year for adult content producers, due almost entirely to rampant online piracy. Many many more companies will close their doors yet this year.

Given the current trends, in another couple years there will be very very few producers who can afford to contain shooting adult content. Which means only one thing, that there will be very little new content.

Where the movie industry and music industry can continue to thrive through alternative revenue streams, the adult industry relies upon it's sales as it's primary revenue stream, and as those sales have virtually dried up to nothing over the last few years, producers are left with little choice but to shut down shop.

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Christopher Strom

"...copying does not always kill the creative goose. The interesting question is why it sometimes does and sometimes doesn't."

I find this hardly interesting as it is quite obvious:

Intellectual property protection is essential where the costs of development are high, such as for pharmaceuticals, complex machinery/technology, certain types of movies, etc.

The reason that rampant IP violations do not noticeably impact creativity in fashion, music, or porn is that the investments in their production are relatively low. Such IP violations do significantly impact the viability of specific business models within those industries, much to the disappointment of leaders of companies based on those (now obsolete) models.

As far as the future of the porn industry, perhaps it might (to a degree) follow the path music industry: as changing technology lowers the cost of production and distribution, there will be less reliance on (and profits to) the distributors of content, and more on content produced and distributed by the artists themselves, as well as a greater emphasis on non-reproducable entertainment such as live shows and escort services.

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