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.