De porno industrie vs digitale piraten

8 februari 2004, 08:50

Playboy, en andere uitgevers van pornografisch materiaal, is het al jaren een doorn in het oog dat duizenden websites hun foto’s gratis via internet verspreiden (zie ook: Verkoopcijfers Playboy in vrije val). De strategie van Playboy om dit te voorkomen is de mensen achter deze websites hard aan te pakken. Tegenstanders beweren al jaren dat gratis bloot op internet juist leidt tot hogere verkopen van de mannenbladen. Als men echt geinteresseerd is koopt men ook het tijdschrift is de achterliggende filosofie.

Dit weekend een interessant artikel van John Schwartz in de NY Times over dit onderwerp. En als ik het goed heb begrepen (je weet nooit met Playboy), heeft Playboy eindelijk door hoe het werkt en zal het haar strategie aanpassen. Ben benieuwd!

The photographer Suze Randall in her Los Angeles studio with a model. Operators of Web sites like hers don't always fight digital piracy the same way the music industry does.Thousands of Web sites are putting Playboy magazine’s pictures on the Internet – free. And Randy Nicolau, the president of, is loving it. “It’s direct marketing at its finest,” he said.

Let the music industry sue those who share files, and let Hollywood push for tough laws and regulations to curb movie copying. Playboy, like many companies that provide access to virtual flesh and naughtiness, is turning online freeloaders into subscribers by giving away pictures to other sites that, in turn, drive visitors right back to

When Mr. Nicolau is asked whether he thinks that the entertainment industry is making a mistake by taking a different approach, he replies: “I haven’t spent much time thinking about it. It’s like asking Henry Ford, ‘What were the buggy-whip guys doing wrong?’ ‘’

The copyright rumble is playing out a little differently in the red-light districts of cyberspace. That neighborhood is increasingly difficult to confine, what with a fetishwear-clad Janet Jackson flashing a Super Bowl audience of millions, and Paris Hilton making her own version of a “Girls Gone Wild” video. Professional peddlers say they are hard pressed to compete.

Still, the business of being bad is very good, especially for the biggest players. Though the industry has felt a financial squeeze during the economic slowdown, it nonetheless has sales of as much as $2 billion each year, said Tom Hymes, the editor of AVNOnline, a business magazine for the industry.

And the pornography industry, which has always been among the first to exploit new technologies, including the VCR, the World Wide Web and online payment systems, is finding novel ways to deal with the threat of online piracy as well. The mainstream entertainment industry, some experts say, would do well to pay attention.

Music executives say their campaign of lawsuits has been successful. They say they have spread the word that downloading free music infringes on copyrights and that there could be consequences for large-scale file sharers.

But the pornography industry has been dealing with Internet copyright issues since the 1980’s. By comparison, the movie and music businesses are relative newcomers. Mr. Hymes said companies in his industry had come to realize that suing consumers and promoting “draconian laws” were not the answer. “No law written can stem the tide,” he said. And so, he said, companies are seeking ways to live with the technologies that threaten them and are trying to turn them to their advantage.

That is not to say that the companies have not been harmed by free copying and distribution of copyrighted material online. Mr. Hymes’s magazine warned recently that such companies were “losing incalculable amounts of cash” to peer-to-peer file-sharing networks like Kazaa, LimeWire, Grokster and Bit Torrent.

“As the networks continue to grow and even more sophisticated programs are created, the P2P networks might prove a bigger threat to the revenue stream of the porn world than all the censorious right-wingers in the country put together,” the article stated.

Maybe. But many companies that distribute X-rated material say they do not worry too much about consumers sharing among themselves; they often unleash their lawyers only when someone is trying to profit by copying their goods and trying to sell them.

When people in the industry talk of copyright, there is none of the grand speechifying about revering artists and rewarding creativity, and the near-tearful paeans to the yeoman key grips and stunt men, as is favored by movie and record executives. Instead, there is just this: We spent a lot of money to get this stuff out to the market. Somebody else is making money off of it. We want the money.

“We haven’t gone after Joe Citizen who’s sharing something he printed off something from the Hustler Web site with another guy,” said Paul Cambria, a lawyer who represents Hustler, Vivid Video and other companies on copyright issues. He does send out some 20 letters a week, he said, warning for-pay Web sites to remove material owned by his clients.

Mr. Cambria suggests that the mainstream entertainment industry is much more combative when it comes to consumers partly because the songs and movies are so carefully and expensively made and distributed. Movies in his industry, by contrast, are often made in a few weeks, and on budgets that a major studio may spend on coffee and pastries, so piracy is not taken quite as seriously. “Maybe a classic is one thing,” he said, “but they’re not all classics.”

A few merchants in the industry who have tried the kind of aggressive methods used by mainstream entertainment companies say they have not received much in return for their efforts. One company that tried to track down copyright infringers and demand that Internet service providers shut down their sites used BayTSP, an Internet monitoring service that also serves the music and movie industries. “It was costing us a lot of money and was producing absolutely zero results,” said Humphry Knipe, who manages the business operations of Suze Randall, a photographer in the field who has her own Web site.

Mr. Knipe, who is married to Ms. Randall, said many Web sites were taken down as a result of more specific legal threats by subpoena to Internet service providers. But even then, “it was extremely doubtful that any of this activity had any effect at all in the real world of improving our sales by restricting piracy,” he said.

Mark Ishikawa, the chief executive of BayTSP, disputes that. He said his company worked for Mr. Knipe almost four years ago, before the threat of lawsuits became common enough to present a real danger to downloaders. “He would have a much different effect today,” he said of Mr. Knipe.

In general, Mr. Ishikawa said, pornography businesses have not been a good market for his services, which can cost from $10,000 to $50,000 a month, depending on the volume of work. “Nobody wanted to spend the money,” he said. It was just as well, he said: “We don’t want to be known in the porn space.”

Many of the businesses, however, are trying various techniques to make paying customers out of people who take their content. Titan Media, a provider of gay pornography, says it tracks down people who violate its copyright and, as an alternative to a lawsuit, offers amnesty if the infringer becomes a subscriber. Identities are not easy to find in the virtual world, and the company must track the infringement through Internet service providers, who are often reluctant to reveal the names of their customers.

So Titan does what many copyright holders do: it sends infringement notices to the service providers, asking them either to remove the offending material or to pass along the notice to the customer. Titan initially tried to unmask infringers by using the same controversial provisions of copyright law used by the music industry to track down file sharers: a streamlined system of subpoenas that do not require a judge’s approval. Titan backed away from the tactic when it prompted privacy protests; a federal court has since ruled that the music industry cannot use those subpoenas against peer-to-peer file traders.

Wendy Seltzer, an advocate for online civil liberties, says the Titan approach may point the way for other industries to enforce their copyrights. Ms. Seltzer, a staff attorney for the Electronic Frontier Foundation, a high-tech policy group that has fought the record industry over copyright issues, acknowledged that the amnesty offer “sounds a little extortionate when they say it, perhaps.” But she said it was “a much more sensible approach” than the music industry’s litigation strategy. “People always want this stuff,” she said, referring to pornography. “Seeing some of it just whets their appetite for more. Once they get through what’s available for free, they’ll move into the paid services.”

Gill Sperlein, general counsel for Titan, said his company must be tough in combating file-sharing networks because of the nature of the content. “When we’re trying to maintain control of our product, it’s not just to protect our financial interest but also our moral obligation to keep it out of the hands of minors,” he said. Once an image or movie has been taken from his site, the company’s elaborate precautions to ensure that minors cannot gain access to the material through the site are defeated. “We are very careful about who we sell our products to,” he said.

Companies are finding that free images can be a selling point, and not just a problem. Playboy pays Webmasters $25 or more for every subscription they funnel to and provides sales and marketing tools to help make the free Web sites more effective. Mr. Nicolau of said that the subscription business grew 74 percent in 2002 and that the company’s revenue growth in 2003 was expected to be as much as 60 percent.

Mr. Hymes of AVNOnline said that the salvation for the industry would come not from laws or lawsuits as much as from bits and bytes. “Technology is going to solve the problem that technology has created,” he said. “The people in this space are seeing it as an opportunity to change habits and to create new opportunities.”

Mr. Sperlein said Titan Media had experimented with software that would require people who download a video clip to return to the Titan site to unlock it and view it, but that this process was too intrusive. So, he said, the company is coming to realize that “the key is to make a product available that’s reasonably priced and reasonably easy to obtain.”

“We’re kind of at the beginning stages of that,” he added.

Others in the industry are using bare-knuckled legal tactics, but they are suing other companies, not individuals. An emerging industry of lawyers and self-appointed Internet monitors is feeding off provisions in copyright law that allow automatic damages when infringement is proved in court. Groups like the Association for the Protection of Internet Copyright, which works mainly for pornography-related businesses, scour the Internet for signs of copyright infringement that they can present to the original owners of the material. They then collect a bounty from a portion of the settlement or statutory penalties, which can reach as much as $150,000 an infringement.

Some people who have been approached by APIC say tactics of the organization’s founder, Steve Easton, go out of bounds. According to papers filed by an Internet service provider in the United States District Court for the Northern District of California last fall, Mr. Easton sent copyright notices with links to pornographic sites to the company and business associates “to burden, harass and embarrass” the service provider.

Mr. Easton said that he was the one being victimized by the lawsuit, but conceded that his tactics had made him vulnerable. “I’ve said things to people that I probably should not have bothered,” he said, “instead of sending notices and keeping to the straight and narrow.”

A pornography merchant, Norman Zada, has sued Web sites that use pictures from his site, Perfect 10, and has also sued the companies that process payments for those sites. (Those suits are still working their way through the courts.) Last month, he took his campaign a step further and sued MasterCard and Visa, which he said contribute to online piracy by processing bills for Web sites that post pornography that rightfully belongs to his site and magazine.

Mr. Zada argues that piracy has cost him some $29 million. “If you create a product and everybody else can sell your product” without paying for it, he said, “you can’t survive.”

Neither credit card company would comment for attribution, but a lawyer from one of the companies scoffed at the suit, saying that it had no legal basis and that the company was too far removed from copyright infringement to have any liability.

Mr. Zada said his lawsuits were legitimate. “They’re all accusing me of extortion and they’re accusing me of using litigation as a profit center – I’m out $29 million!” he said. “This is not a profit center.” He said he believed, however, that he could make back that sum and more if he could only have the courts give him total control over images he owns.

He has the right to make his case in court, he said: “This wonderful country gives you the opportunity to right the playing field.” Companies like his, he said, must litigate aggressively because they do not get the kind of support from law enforcement that the music and movie industries receive.

Tough industry tactics should come as no surprise, said Charles Carreon, the lawyer suing Mr. Easton. Pornography, after all, is a business with a history. “Everybody forgets that somebody shot Larry Flynt,” he said.

Pornography merchants say that they have the advantage over free file-sharing networks, at least for now. They say the networks are not well suited to the needs of their consumers, who like images and movies that push their very specific buttons for, say, blondes or cheerleaders.

“Free is very anarchistic and hard to deal with, and you don’t know what you’re getting,” said a pornography entrepreneur who goes by the online pseudonym T. Lassiter Jones. “Cheap is more convenient.”

That notion could be the great hope of the mainstream entertainment industry, where fledgling services like the iTunes store and Rhapsody that offer inexpensive, easy access to legal music are beginning to catch on.

So, yes, sex sells, but so can music.


Marco Derksen
Partner bij Upstream

Oprichter/partner Upstream, Marketingfacts, Arnhem Direct, SportNext, TravelNext, RvT VPRO, Bestuur Luxor Live, social business, onderwijs, fotografie en vader!


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