Saturday, April 17, 2010

Vicky Vette vs. RapidShare: A Shot In The Dark, Or A Major Blow Against Porn Piracy??

Remember when I had posted here about Vicky Vette complaining about how file-sharing venues like RapidShare were basically stealing her content and passing it on for free...and that she was considering legal action to prevent such??

Well, last week, she cashed the check, so to speak. The story courtesy of

Adult Star Vicky Vette Sues RapidShare For Stealing Content

LOS ANGELES —Adult star Vicky Vette has filed a lawsuit against RapidShare A.G. claiming the company repeatedly uploaded her content and provided it free to web surfers.

Vette said she is the first major adult star to file a lawsuit against RapidShare.The suit was filed in Los Angeles County.

According to Vette's attorney, Michael Kernan, the suit centers around Vette's right of publicity. Kernan said that under California law, any actor has the right to protect their name and likeness. RapidShare, Kernan said, is illegally using Vette's likeness and content to sell memberships to its sites.

"RapidShare is trying to redefine itself as a Google, when in fact it is more like Napster and making a profit out of selling pirated content. It's downloading copyright protected material," Kernan said.

[Quote from Vicky] "The adult industry has complained bitterly about torrent sites and file sharing sites like RapidShare destroying the business, but for some reason no one has stepped up to the plate and done anything about it. Instead of whining, I decided to put my money where my mouth is, and retained an attorney to sue them. I have lots of popular exclusive content like my 'Lavatory Occupied' series that is repeatedly available on RapidShare for download without my permission."

Vette said she decided to sue after repeatedly sending cease and desist letters that were ignored by RapidShare.

"RapidShare promised me they would "filter" their content, but I just found 'Lavatory Occupied'... once again... sitting on their servers and free to the world. I think it must be deliberate, or they just don't care.They seem to feel they are immune to action," Vette said.

"Anytime I mention this to other people in the business I am shocked that they shrug their shoulders and seem resigned to the stealing that is going on. Napster was forced to comply with the law after being sued. I am hoping to set an example. Just because my content is adult does not mean that it is not worthy of protection. It costs me money to make it, and it is valuable to me. Just a couple of months ago a comic book publishing consortium got an injunction for similar infringing behavior against RapidShare. I figured that it was a great time to strike," Vette said.

RapidShare's U.S. attorneys were not available for comment at press time.

In a related story, XBIZ reported today that Perfect 10, which also filed a suit against RapidShare won a motion to deny RapidShare from postponing a preliminary injunction hearing set for May 12 and moving the venue to Germany. The hearing will be heard in San Diego District Court as originally scheduled.

“RapidShare didn’t want a U.S. court to have the opportunity to hear the case," Perfect 10 owner Norm Zeda told XBIZ. "They wanted the case tried under German law."

Zada filed a preliminary injunction April 12 against RapidShare, saying the company is stealing, copying and selling his copyrighted material.

RapidShare's response in a memorandum stated that Perfect 10 has declined to provide RapidShare with the links to files it asserts are among hundreds of millions of user files on RapidShare’s site, which RapidShare would gladly remove if Perfect 10 shared this information.

According to Zada, RapidShare admits to selling the content, but not to copying it, saying the material ended up on its servers, which are located in Germany, through anonymous third parties.

RapidShare claimed it's a storage site where users can store and share files and view licensed content, including video games and movie trailers from Warner Brothers in Germany.

But Zeda argued, "They’re not a storage locker. RapidShare is the greatest infringing paysite of all time. They’re making $80 million a year that belongs to American studios and producers.”

Zada said he has lost $60 million fighting the good fight, adding the U.S. government doesn’t help the cause by not offering copyright protection.

Both Zeda and Vette said they will continue the fight.

Vette asked others in adult who think they are victims of RapidShare to email her and she will refer them to her attorney.

Now, the consensus opinion out there praises Vicky for being the first adult star to initiate such a legal action, but also gives her not much of a chance of success, and even includes a heavy risk of having to pay all of RapidShare's court costs if unsuccessful.  I'm figuring, though, that she's willing to take that risk for the basic principle of protecting her property and her interests, and standing up for performers.

It's not the first time that RapidShare has been targeted for enabling piracy; I posted earlier about the ruling that favored a group of booksellers and comic authors claiming that RS illegally violated their copyright rights by reproducing the former's content and reproducing it for free. And, as noted above, Perfect 10 has become well known for their legal challenges to companies who offer open access to file shareing, as their long-running battle against Google shows....though that one didn't quite turn out in their favor.

It should be noticed that Vette's lawsuit involves only material specifically pilfered from her own sites (the Lavatory Occupied series was an exclusive that was produced around 2006-2007 for her personal site, and not content that she produced for other companies such as Brazzers or Naughty America.

I'm guessing that the counter argument put out by RapidShare will be that they should not be held responsible or liable for the actions of their users, who upload the contents themselves for safe keeping and sharing to RS's servers; and that only the users who steal content directly from performers' sites and reproduce them as their own for free or resale should be the ones held liable. This was exactly the defense that Napster and many bit torrent sites used against legal actions against varying success.

Also, it could be argued that given the ease of downloading material using instant downloader software and the fact that many uploaders and users of file-saving/file storage software get their material legally and legitimately through valid monthly memberships and simply use the storage for safe keeping rather than file sharing (not to deny in any way that more overt theft does exist), it would be well nigh impossible to prove that there is any malicious theft.  The fact that RapidShare does charge fees for storage based on length of time, and does tend to look away at the sight of covert copying of paid content, does tend to strength Vicky's case a bit.

Either way, this case is a potential game changer for both file-sharing and adult media production...and more than worth watching.  Whatever side you may be on, you gotta give Vicky Vette her just deserved credit for backing up with action her words and deeds.

1 comment:

  1. With Vicky on this 100%. I admire her determination and willingness to go it alone, at least so far. I would hope that other performers with membership sites would join her legal action, and that she would welcome them. The more sign on, the more resources will be available and the more different fronts the pirates will have to defend.

    I think, and have always thought, the RS arguments are specious and disingenuous. Storage indeed. How long would any of these outfits stay in business if it weren't for the piracy they enable?

    It's going to be a long battle, but as with Napster, it's not hopeless. RS and others like them are all about making money with little hassle. If the hassle gets big enough, like Napster, they'll fold under the pressure.

    But let's not forget that the other factor that did in Napster was the creation of an alternative marketing platform with which they couldn't compete: iTunes. Once content became both legal and cheap, the motivation for piracy faded away.

    I've long argued that selling shorter blocks of content time at lower prices would be a useful counter-strategy, as is the use of live streaming, in which viewers pay for the content as it's created and the owners get their money back out before the pirates can steal it.

    I think we need to both confront these thieves legally at the front end while starving them of revenues from behind. This combined counterattack may send them in search of easier targets of opportunity, which is our best hope.

    In the meantime, I wish Vicky the best of luck and hope she makes some recovery soon. I also laud her willingness to incur the risk and expense on behalf of all content providers.