Lawyer Weighs in on Brazzers Lawsuit(s)

NL- My friend "C" is a lawyer specializing in Internet-based copyright infringement. Nice friend to have around! He wrote down some of his thoughts for me on Brazzers and the lawsuit(s). Thanks C!

This is an OP/ED

Brazzers, for quite awhile, has been suspected of owning and operating the biggest porn tube sites on the Internet. Some of the evidence in support of this suspicion is rather blatant, such as WHOIS information reflecting that the domain names of the tube sites are owned by Brazzers or its associated companies. Other evidence is more subtle, such as the fact that Brazzers content on the tube sites is limited to three- to eight-minute clips and trailers, while other studios’s content is available in its entirety. All available evidence being considered, it is more likely than not that Brazzers does indeed own and operate the tube sites–which begs the question:

If Brazzers is engaged in "illegal copyright infringement," why do people and companies choose to work with them? It comes down to money, which Brazzers has A LOT of, as demonstrated by the federal government’s $6.4 million dollar forfeiture action against Brazzers. With DVD sales declining and other avenues of distrubution proving to be unlucrative, many smaller studios have no choice but to license their content to Brazzers or to otherwise do business with them.

Furthermore, the illegality of Brazzers’s alleged ownership and operation of the tube sites is not as clear as it would seem. Brazzers’s defense to Pink Visual’s recently-filed suit, and those similar to it, will likely be that it (Brazzers) is nothing more than an Internet Service Provider (ISP), as defined under the DMCA.

Under the DMCA, an ISP is generally not liable for copyright infringement as long as it is not actively encouraging infringement; and as long as it removes content alleged to be infringing within a reasonable amount of time. When submitting content to the tube sites allegedly owned and operated by Brazzers, users are warned that they must either own, or be authorized to upload, the content that they are uploading. Whether this is sufficient to absolve an ISP of liability for copyright infringement remains to be seen. However, courts have shown that they are reluctant to impose an affirmative duty on ISP’s to monitor for copyright infringing material.

It will be interesting to see how Pink Visual’s suit is resolved. Will Pink Visual agree to a confidential settlement agreement and dismiss its action against Brazzers? Or will Pink Visual end up spending millions, only for an appellate court to hold that the allegedly Brazzers-owned tube sites are protected by the safe harbor provisions of the DMCA?

Only time will tell.

C