With the rapid increase in consumption of online videos, the adult entertainment industry has struggled to combat online video piracy. Consumers’ easy access to free short clips – most notably, those posted on the “Tube” sites —  has hurt the adult producers who earn most of their money from the original full videos.  Some adult producers have considered suing individual file sharers for copyright infringement. But, most of them have resorted to sending take-down  or cease and desist notices instead. This is why Vivid Entertainment Group’s lawsuit against PornoTube was widely viewed as the adult industry’s first big step in this direction.

In December 2007, Vivid Entertainment Group (“Vivid”) sued PornoTube’s parent companies, Data Conversions, Inc. (operated as AEBN) and WMM, LLC, alleging copyright infringement of at least 50 scenes from Vivid’s adult movies and violation of Federal 2257 record-keeping requirements. The suit was filed in the United States District Court for the Central District of California. Vivid sought permanent injunction against AEBN as well as $4.5 million in damages.

Vivid alleged that PornoTube engaged in willful copyright infringement of its works by using technological advancements. Vivid also alleged that PornoTube’s actions, which included uploading copyrighted works owned by Vivid or others, resulted in a large monetary loss to Vivid.  Vivid also sought to pioneer a new legal strategy by alleging that failure to comply with US Code 2257, has given PornoTube and its parent companies, an unfair competitive advantage in the adult entertainment industry. 18 U.S.C. Section 2257, known as the Child Protection and Obscenity Enforcement Act, requires adult producers to keep detailed records of the age and identity of their performers.

Vivid’s complaint alleged that PornoTube did not have records for the performers of the infringed copyrighted videos. This gave PornoTube an unfair competitive advantage over others in the adult entertainment industry because it did not incur the costs associated to maintain the records. This new legal strategy gave some hope to many adult producers, who actively sought new weapons to fight against the infringers.

Unfortunately, Vivid’s unexplained withdrawal of the lawsuit in October 2008, has put those hopes on hold and thus, the battle against the infringers still continues.

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