It has been interesting this week to see members of the adult industry, famous for its staunch defense of free speech, object to being quoted in ways they find ‘exploitative’ or damaging to their interests. Notions of having a free and open debate, so cherished by the founders of our country, go out the window when the adult ox is being gored.
On Friday the 13th, Keith Griffith, owner of the website Cruising for Sex [explicit], emailed us to complain that quoting from his site’s Gloryhole FAQ (as we do here) violates his copyright terms, which state:
All material on this page and all linked pages belonging to CRUISING for SEX (sm) are copyright protected. No permission is granted and, in fact, it is strictly forbidden to make use of this material, in whole or in part, for any purpose without obtaining written permission. Violators are subject to legal action. Individuals are allowed to download and/or print portions of listings and feature articles for their own private use.
Unluckily for Mr. Griffith, we are familiar with what the First Amendment and copyright laws require. We responded to him today as follows:
Dear Mr. Griffith:
Our legal counsel has reviewed your complaint of copyright violation and found it to be without merit. NoPornNorthampton’s quotations from “The Gloryhole FAQ” fall well within the realm of fair use as recognized by federal case law, which overrides the absolute language of your website’s copyright notice.
The four factors traditionally considered by courts are the purpose and character of the use; the nature of the copyrighted work; the percentage of the work that was copied; and the effect of the use upon the potential market.
Examples of transformative uses include parody, scholarly analysis, and journalistic commentary. These nonprofit uses are given much more leeway than straight copying by a commercial competitor. NoPornNorthampton excerpted a small portion of the content of The Gloryhole FAQ, only as necessary to illustrate our own arguments and research about what occurs in adult establishments. The quoted material was not a majority of the article. This is clearly a transformative use.
Nature of the original work: Courts also grant more leeway in copying from factual materials than from fictional creative works, in order to further the public interest in disseminating information. Published works are also subject to broader copying because the author has already had the chance to control the first publication of the material. These factors also favor NoPornNorthampton.
The percentage of the article copied was less than 15%, a small proportion of the original, and did not reproduce the overall structure, editorial framing and presentation of the material on the original site.
The fourth factor, whether the copying damages the market for the original, is applied differently in cases of commercial competition and in parody/critical commentary situations. Although NoPornNorthampton’s blog post intends to, and could, damage some of the interests of The Gloryhole FAQ by decreasing opportunities for the kind of public sex that your readers seek, the Supreme Court in Campbell v. Acuff-Rose Music (510 US 569, 1994) gave broad protection even to parodies and critical commentaries that copy the “heart” of the original work, because the public’s interest in debate trumps commercial considerations.
The adult industry has advocated for robust free speech protection even for works that some may find damaging, offensive or embarrassing. In court, the balance of equities would strongly favor NoPornNorthampton’s fair use claim over an adult website’s bad-faith attempt to preempt political debate using the copyright laws.
Jendi Reiter, Esq.
The Gloryhole FAQ (explicit language)
the glory hole phenomenon is useful when evaluating statements made by
commercial sex shop operators such as Capital Video. For example, at
Capital Video’s license violation hearing
in Springfield on June 18, they made much of the fact that they
recently installed metal sheets between the viewing booths in their
Apremont Triangle Amazing.net store. However, Lilfuzzyg, “an avid
attendee of gloryholes”, suggests above that metal partitions can be
holed just as wooden ones can…
Pro-Porn Free Speech Lover Doesn’t Like It When We Reference Her Public Material in a Critical Context
Many things make no sense in Pornoland. The latest example is the position of Renegade Evolution,
a porn advocate, “a bit pathological about the rights of free speech,”
who objects to our linking to her public statements without permission
(even though she linked to NoPornNorthampton on July 8
with no prior notice) and our referencing her material in a critical
context. A key element of what free speech is about–truth emerging
from open debate–seems to have escaped her…
Ren Ev carries on her arguments here,
but the bottom line is she perceives referencing her speech to
criticize it to be an inappropriate use that amounts to “exploitation”.
I suppose you could characterize any critical examination of anyone’s
speech in this way, although I doubt this encourages the kind of open
debate the founders of our country prized. Free speech is not just isolated individuals spouting off without reference to each other.
pornography and pro-porn arguments is critical to understanding how
porn works, why it’s harmful, its addictive qualities, and the toxic,
narrow version of sexuality it sells. We appreciate that porn advocates
may be upset or embarrassed by having their materials used in this way,
but their interests must be balanced against the harms the sex industry imposes on third parties and its own participants. We will not cease to use the industry’s copious amounts of self-damaging evidence against it. This includes cases of commercial exploitation of other people’s likenesses without their consent, a far less defensible act than referencing material to make a political argument.
Wikipedia: Hustler Magazine, Inc. v. Falwell (1988)
The Hustler parody featured a picture of Falwell, and an “interview” in which “Falwell” describes his first sexual experience as occurring “with Mom” in an outhouse while both were “drunk off our God-fearing asses on Campari.” In the spoof interview, “Falwell” goes on to say that he was so intoxicated that “Mom looked better than a Baptist whore with a $100 donation,” that he decided to have sex with his mother since she had “showed all the other guys in town such a good time,” and that they had intercourse regularly afterwards. Finally, when asked if he had tried Campari since, “Falwell” answered, “I always get sloshed before I go out to the pulpit. You don’t think I could lay down all that bullshit sober, do you?”…
Falwell sued for libel, invasion of privacy, and intentional infliction of emotional distress, but the US Supreme Court found for Hustler, saying,
“At the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern. The freedom to speak one’s mind is not only an aspect of individual liberty — and thus a good unto itself — but also is essential to the common quest for truth and the vitality of society as a whole. We have therefore been particularly vigilant to ensure that individual expressions of ideas remain free from governmentally imposed sanctions”.
Gail Dines Presents: Pornography and Pop Culture (explicit)
This video includes explicit still images. Some may find it painful to
watch, especially victims of sexual violence. Acknowledging this,
activists have found that presenting today’s porn in an unfiltered
fashion is “an effective and rapid consciousness-raiser about misogyny and male views of women”. We have seen our opposition claim that we should go easy on porn because it’s a form of “art”, that it represents the empowerment of women, or that today’s porn is no more harmful than paintings or century-old erotica pictures. We feel the best counter to these arguments is to show people what today’s porn actually is.
Capital Video: Purveyors of Shame Feature a New “Celebrity Sex Tape Scandal” (explicit language)
…Capital Video excels in the wrongful uses of shame. We have already discussed their prominent offering of “1 Night in Paris” at their website, Amazing.net:
Best price on the web! We are purchasing a huge amount of them and will
fulfill all orders as soon as it arrives. This collectors item is a
must have for your adult video library! Paris Hilton a blue blood
celebrity now forever to be referenced by her 102 minutes of shame.
Watched this surveillance film of the Hilton family’s worst nightmare.
Rick in Paris’ Hotel… Rick’s tongue in Paris’ Pussy…Rick’s dick in
Paris’ mouth…Rick’s cock in Paris’ pussy! The finale showcases Ms
Hilton’s blowjob talents where Solomon jerks his load on her breasts.
Featured at the top of the Amazing.net home page today is “Kim Kardashian Superstar”. The movie box cover bills this as “The NEW Celebrity SEX Tape Scandal”. Amazing.net’s (typo ridden) sales copy reads:
Paris Hilton’s good friend socialite Kim Kardashian has been caught up
in a new sex tape scandal after filming her sexploits with her ex,
Whitney Houston’s reported new beau Ray J.A raunchy tape featuring the
former couple engaged in various sex acts.Kim Kardishian, the daughter
of famed attorney Robert Kardishian, reportedly has been offered a $2
million deal for the exclusive rights to the tape. But Kardashian
insists she wants nothing to do with the sale of the sex tape, and
insists her ex, R&B star Brandy’s brother, will not want to get
caught up in the deal either.
Not only is this a bad use of shame, but the consent of
the “star” to release the film is not apparent. Capital Video appears
to believe that calling attention to this will increase sales, or at
least not hurt them. Consent also appears to be missing, or at least
not clearly apparent, with the release of the Paris Hilton video. Many
of our opponents claim that consenting adults
should be allowed to do whatever they want when it comes to porn. The
truth is, however, that many elements of the porn industry show little
desire to be scrupulous about the appearance or the reality of consent
in their products.