Stolen Moments – The Legal Options to Address Pirated Online Content

Updated August 27, 2020

Content creators are experiencing a wave of content being copied and re-shared on third party websites. Often, this stolen content is monetized by the pirate, and the original content creator receives no compensation for their hard work. This can result in drastic economic losses for mainstream social media influencers and adult entertainers alike. Some content creators are shocked to learn that intimate content intended only for specific subscribers has been widely shared and viewed by friends, family, and employers. All content creators are susceptible to piracy, whether they sell recorded content a la carte on tube and clip sites, stream live on cam sites, or offer subscriptions on fan sites.

In early 2020, more than 1.6 terabytes of images and video were illegally scraped from OnlyFans and Patreon and released to the public for free. While originally misreported as a hack or leak, there was no breach of the sites’ security systems. Instead, numerous individuals subscribed to OnlyFans and Patreon accounts, illegally screen captured the material on those accounts, and redistributed it on third party websites and social media applications. Someone then compiled those stolen materials from the third-party websites and social media applications and sorted the content by username, before releasing it all for free in one mega trove of pirated material.

This illicit business model is disturbingly simple. A pirate purchases recorded content, records a live webcam stream, or subscribes to a fan site. Using current screen capture technology, the pirate records the performance and redistributes it on a file locker, cloud drive, or social media account. Typically, these troves of pirated material are hosted in remote jurisdictions and use remote proxy servers that make it harder to track and stop the piracy. The pirate then sells access to the trove of stolen performances at a discounted rate, to incentivize users to choose the pirated content over the original source. In some cases, the pirate will even give some content away for free as a teaser to encourage further sales. Such activities are criminal under copyright law.

Piracy is not a victimless crime. The content creator is victimized when his or her content is stolen and resold without proper compensation, and the user-generated content site is victimized when potential users access the pirated content on third-party websites rather than on its paid content service. Often, both parties will also be the victim of trademark infringement, since the username of the content creator and the site’s brand name are often included in the pirate site’s URL or content titles and descriptions.

So, what can be done about this piracy? The first step is to sort out who owns what. A site’s Terms of Use or Model Agreement typically state which party retains the copyright to the recorded content and live performances. Most often those rights remain with the content creator, who will provide some sort of license permitting the site to publish the material. Thus, the content creator is the party that possesses the legal right to take action against the pirate, pirate site, cloud drive, or social media account for stealing and/or redistributing his or her content.

The most common initial response to this type of copyright infringement is transmission of a notification of infringement under the Digital Millennium Copyright Act (“DMCA”). Importantly, the DMCA puts the onus on the content creator to protect his or her work; not the site where the content was originally posted by the content creator, nor the site where the content was illegally posted by the pirate. Sites have no affirmative duty to proactively monitor for infringement; sites only have a duty to respond to properly filed reports of infringement. That means the content creator must take an active role in patrolling for pirates and reporting stolen content to the site where the content is reposted through the DMCA takedown procedures. A DMCA notice is only legally effective when it contains all the necessary information and is sent to a third party that provides services to the infringer. DMCA notices are not complicated, and various forms can be found online including the author’s QuickDMCA mobile app.

While user-generated content sites are under no obligation to monitor for infringement, many take active measures to prevent infringement on their services. All reputable sites will include a prohibition on copyright infringing activities in their Terms of Use Agreement. Many sites now implement anti-screen capturing technology to prevent copying in the first place. Adult sites often allow content creators to “location-gate” content which prevents users in selected geographic regions from accessing the content. Some adult sites even seek authorization from content creators to enforce their copyrights through in-house teams or third-party services that track copyright infringing activities and send out DMCA notices on the content creator’s behalf. Some of these services also fingerprint the performer’s content so the original leaker can be identified and pursued.

DMCA notices should not be sent directly to the infringing party. When pursuing the infringing party directly, the proper legal vehicle is known as a cease and desist or demand letter.  A demand letter is designed to put the infringer on notice that they have been caught, and to demand that the infringing content be removed from circulation. Typically, a demand letter reserves the right to sue for damages or seek other remedies, even if the material is promptly taken down.

Both DMCA notices and demand letters are relatively inexpensive and generally effective. While pirates frequently hide in jurisdictions with lax copyright enforcement policies, the operators of pirate sites and accounts often choose to respond to formal legal notices (sent by proper parties) rather than risk a potential lawsuit. From the pirate’s perspective, there is plenty of other content to be stolen, so discretion is the better part of valor when faced with a valid infringement notice.

Naturally, some pirates refuse to respond to legal notices and call the copyright holder’s bluff. While this can be frustrating, claimants should make sure they have identified all possible service providers for purposes of DMCA notices, including hosts, domain privacy service providers, cloud drives and file lockers, billing companies, proxy service providers, content delivery networks, etc. Loss of essential services can result in quick compliance. Equally important is thorough investigation into all relevant contact points and addresses. A legal notice sent to the correct physical address frequently gets an infringer’s attention.

For some copyright or trademark holders, the filing of a lawsuit for intellectual property theft will be the final solution. While litigation is expensive and uncertain, permitting rampant theft of copyrighted performances is likewise unacceptable.

From a content creator’s standpoint, it is essential to establish a reputation for enforcing copyrights. Pirating stolen content is a volume business, and dealing with infringement demands consumes resources that would otherwise be devoted to furthering the pirates’ illegal enterprise. Content creators can make themselves a less attractive target for pirates by holding infringers accountable.

As the content creation continues to become a more profitable enterprise, so does the interest in pirating content. Intellectual property holders are encouraged to consider their available options when addressing the newest flavor of online piracy.

Lawrence Walters heads up Walters Law Group and has advocated for the interests of the adult entertainment community for over 30 years. Nothing in this article is intended as legal advice. Mr. Walters can be reached at www.firstamendment.com, or on social media @walterslawgroup.

 

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