Porn studio sues PornoTube for copyright infringement

Aping Viacom's fight against YouTube, a major porn company says user-submitted streaming sites are pilfering adult "intellectual" property.

By Farhad Manjoo

Published December 11, 2007 8:35PM (EST)

Vivid Entertainment, the world's largest producer of adult films, has filed suit against, one of several new and very popular user-submitted porn sites, for infringing Vivid's intellectual property.

The "intellectual" there is a term of legal art: We're talking about titles like "Night Nurses," "Where the Boys Aren't" (of which there are dozens of volumes), as well as the sex tape of Kim Kardashian, the rights to which Vivid apparently owns.

The suit, filed yesterday in federal court in Southern California, accuses the Adult Entertainment Broadcast Network, PornoTube's parent, of building a business that "depends on the uploading, posting, display and performance of copyrighted audio-visual works belonging to Vivid and others."

PornoTube -- along with rivals like YouPorn -- work much the way YouTube does: It streams videos that people submit to the site. As with YouTube, other companies' intellectual property often ends up on the site -- and, also just like YouTube, the porn sites say they'll take down offending material when producers alert them to it.

Whether the Web companies should do any more about copyright infringement, and whether they should pay damages if they're diligently taking down offending material, is the subject of a major copyright suit that Viacom has filed against YouTube. The media company has demanded damages from YouTube for streaming its material (shows like "The Colbert Report" and "The Daily Show.") Vivid's claim against PornoTube raises similar legal issues.

In a statement, Vivid's attorney expressed much the same argument as mainstream media companies have put forward against YouTube -- it's the Web company's responsibility, and not the copyright holder's, to make sure no offending material gets on the site, he says.

"Vivid should not have to take responsibility for policing PornoTube on a minute-by-minute basis to protect its rights," he said.

But that's not settled law. It's possible that under the Digital Millennium Copyright Act, the law that governs how Web sites and producers should deal with copyright claims, YouPorn, PornoTube, and YouTube are acting perfectly legally. The law says that sites that merely host users' content aren't responsible for damages if they remove the material when notified.

A court ruling that finds that sites should do more than that -- whether that ruling comes in Viacom's fight to protect Stephen Colbert or Vivid's fight to protect "Naught Nurses" -- will significantly impact how all user-submitted social sites operate. This is going to be one balls-out copyright fight.

[Flickr picture by Tom Adams.]

Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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