I was writing about ways to get to non-compliant IP-infringing websites before it was fashionable. But eventually more and more law-enforcement folks and legislators have caught up with my visionary noodling and have been doing something about it too — and their something is the kind that matters. At Randazza’s The Legal Satyricon, my colleague Jay DeVoy, whose practice is focused on the “adult” (porn) industry, writes that such legislative measures are not necessarily as good for, much less for the benefit of, the porn industry as some folks might be thinking or saying.
Well, all right. That’s a point as far as it goes. Most of us aren’t losing any sleep over that. Yes, I know, the actors lose out from infringement, and I’m not endorsing that at all. But when it comes to infringement of intellectual property rights in pornography, the “exploitation” issue cuts in many directions. Nothing personal.
But many people are troubled about the confiscatory and due process aspects of the trend toward ex parte seizures of virtual real estate. There are real questions about how comfortable we should be about this level of government custodianship over the Internet. I share these concerns, though I think that is a topic that’s too big for this blog, though I’ll keep an eye on it. In fact, that also is not Malcolm’s topic. He kind of likes the idea– which I find a little disconcerting considering the otherwise “civil libertarian” bent of his and Marc’s practice.
I was impressed, however, with a couple of other points Jay made in his blog post, which could be of great practical concern even from the perspective of the IP “enforcement” side of things — namely that this sort of busting-through-the-door stuff is not necessarily all that helpful for civil litigators. First, to be fair, here’s the heart of Jay’s thesis:
On the surface, government intervention is a good thing – an entity with tremendous resources and power is stepping in to preserve the market for IP holders’ goods. If you think the government is doing this for the benefit of the adult [sic] market – or that these efforts will in any way aid adult – think again. As always, the beneficiaries of these policies are the groups that weren’t hurting too badly in the first place. For example, the RIAA and MPAA spend tons of money pursuing infringers just to preserve the markets for their respective works, as they have the resources to do so, and simply meting out high-profile punishments without regard for what recovery they can actually obtain is sufficient to serve their ends. For example, the movie industry posted massive profits for 2010. Then there are brands like Gucci and Louis Vuitton that love government intervention so that the market for their overpriced products is kept free from cut-rate counterfeiters.
The adult entertainment industry lacks this kind of centralized, well-funded activism apparatus. While the sums at stake for the industry as a whole may rival those sought – and spent – by the RIAA and MPAA, a patchwork approach to litigation, including undisclosed settlements, keeps outsiders from seeing the full scope of piracy’s damages. In just one case, Evil Angel and Jules Jordan won a $17.5 million award against various defendants for DVD piracy – an activity that seems almost quaint in the current climate of BitTorrent litigation. While that’s a huge award, too, it still pales in comparison to the amount of money the RIAA will spend to fight pirates in a single year. Especially after Citizens United, money talks, and its the mainstream recording industries that are spending more of it to influence legislative activity.
So, evidently, this legislative push is not made with the intent of making life easier for adult content producers. In practice, it will not behoove them either. Here’s why:
Why is two main things: The G-men destroy evidence, and they grab assets that would otherwise be available to satisfy the claims of civil claimants. Read the whole post.
UPDATE: More from Jay. He’s not any happier.