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Same complaints, sexier Tube in one Vivid copyright case

What does Sumner Redstone have in common with Steve Hirsch, founder and president of the world's largest producer of hardcore sex videos? More than the Viacom honcho might think.

Hirsch's Vivid Entertainment, the biggest name in the $12 billion-a-year adult video industry, filed a familiar-sounding lawsuit last month against PornoTube, one of a handful of popular video-sharing sites styled as the dirtier, sexier, money-shot cousins of YouTube, Redstone's legal nemesis. Similar to the Google-owned video juggernaut, PornoTube has become a destination for free porn by letting anyone post sex videos without filtering out clips that might be copyrighted.

"In other words," the lawsuit reads, PornoTube "deliberately and knowingly built a library of infringing works … enabling them to gain an enormous share of Internet traffic, increase its businesses and earn vast amounts of revenue in the process."

Viacom's words, almost exactly, in its $1 billion claim against YouTube, filed last March and just entering the discovery phase in New York. At issue in both cases is whether video-sharing sites are shielded by the Digital Millennium Copyright Act if they take down videos when asked and don't profit "directly" from the infringements. (Vivid also claims PornoTube violates a strict child-pornography law by not verifying the ages of the participants in videos posted on its site, though recently an appeals court ruled against that law on free speech grounds.)

The copyright issue is unsettled, but the plaintiffs are piling up. Vivid joins Titan Media, a gay erotica publisher that sued the Michael Eisner-backed Veoh, as well as Viacom and the members of a class action also pending against YouTube in New York.

Hirsch says that PornoTube doesn't do enough to keep his content off its site, and, like YouTube, it has leveraged the traffic it delivers into marketing deals with other sex video producers. It has left Hirsch's company, a leader in an industry that has pioneered new technologies like the VCR and VOD much more than its Hollywood equivalents, with little choice but to sue the pants off the user-generated sites.

"How do we survive?" Hirsch asks. "As DVD sales decrease, we need to look to other revenue streams."

Domestic DVD spending for mainstream fare was off 3.6% in 2007, but Hirsch told Portfolio magazine recently that Vivid's DVD sales are down 50% since 2004. VOD is the future, he says, but he can't compete with free. North Carolina-based PornoTube isn't talking about the lawsuit. But its defenders argue that most of the porn on the sharing sites is created and distributed by amateurs. And the copyrighted stuff probably serves as valuable promotion for Vivid. Hirsch disputes those arguments.

"Two or three minutes — that's all you need," Hirsch says. "After watching two or three minutes of hardcore sex, you're not going to go and buy the full movie. And if you look on these sites, an overwhelming amount of content is copyrighted." Hirsch likens the porn industry's perilous situation to the music business' similar reliance on consumers paying for collections of product (albums) that can be enjoyed in bits and pieces — and often for free on the Internet. Album sales were down another 15% in 2007, the seventh consecutive year of decline.

Hirsch says that he and his legal team, led by Paul Cambria in Buffalo, N.Y., are gearing up for a long fight. They could probably call Viacom's lawyers for some tips.
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