A recent story (yes, it’s safe for work, home, etc) highlights what is apparently a problem for online p0rn* retailers: Their “product” is a bundle of ones and zeroes, and other parties (such as search engines) often make the same “product” available for free. Thus, the law.com story notes:
A Web site that sells photos of naked women is suing Google Inc., alleging that the online search engine leader is destroying its business by distributing links and passwords that provide free glimpses of the nude models.
Whatever the legal rules here — I don’t know the legal aspects of the case, but it sounds like it may favor the p0rn merchants — I have no sympathy whatsoever for these peddlers of smut. P0rn merchants have exploited the internet for years, using it to bring in income off of the bodies of vulnerable young women (and men) and the weaknesses and addictions of vulnerable men (and women). Their market is now under attack, and I don’t feel sorry for them.
However, I’m wondering in this post about the net spiritual consequences of this development. After all, it seems to have both positive and negative potential consequences. On the positive side, it shows that it is more difficult to make a living as a p0rn peddler. If this line of business becomes less lucrative, then people will leave it. On the negative side, this is dissemination of free p0rn in place of paid p0rn. And there are at least some people for whom the monthly fees might be the only deterrent keeping them from looking at the stuff in the first place.
Thus, this potentially leads to a world with (1) fewer p0rn peddlers — a good thing — and therefore (potentially) less p0rn and fewer users, but also where (2) some of the p0rn which is now locked up as private property (and shown only to those who pay) will be bandied about for free, thus making more available p0rn and potentially increasing the user pool, as well as the amount of stuff available to any one user.
So is that a net gain, a net loss, or a wash? I’m not sure.
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*Note: I use the zero because this is a term that I really don’t want to be attracting people off of search engines. If I use the real term, then someone googling for that kind of material might find this site. I recognize that there might be lost missionary opportunities, but I think that the majority of people who might find the site while expecting some nudie pictures would either just go away or, worse, post a profane tirade of some sort. And I really don’t want that. Hence the zeroes.
Kaimi and other lawyers,
I’ve wondered if Congress could pass a law making contracts for the sale or production of poornography unenforceable. The possession and production would still be legal because they’re currently protected by the nine kings in robes who’ve decided to include poorn within the 1st Amendment. What I don’t remember, if I ever learned them, are the limits the Constitution places on Congress’s ability to deem contracts unenforceable.
Anyway, if it were possible to make the contracts unenforceable, then, among many other consequences, banks wouldn’t issue credit card merchant accounts to those who peddled poornography, and poornography would disappear from paid websites, from hotels like Marriott and Hilton, and from the pay-per-view channels of cable and satellite companies. 95% of the incentive to produce and distribute pornography would disappear, too.
So, if Congress had the will, would the Courts allow the way?
Interesting question, Matt.
I don’t know the contract law here — I presume that the grounds would be a contract unenforceable for public policy reasons, like a contract to enter slavery or a contract to assassinate a person.
An alternative tack might be to approach from the IP side. Completely strip p0rn of any IP protection. You can make p0rn if you want to, but it’s going straight into the public domain, buddy, so I hope you aren’t planning on making any money off of it.
Of course, there are line-drawing problems with either of those. There is a lot of legitimate, artistic nudity. We don’t want to destroy legal protection for the Venus de Milo. So the definition would probably need to be pretty carefully drawn. (We can’t use the Potter Stewart “I know it when I see it” test). Most “softcore” p0rn (just pictures of naked bodies, like Playboy magazine) would probably be hard to filter out. On the other hand, a statute defining p0rn as a picture or recording of two people actually having sex would capture most or all “hardcore” p0rn (I believe that that’s the operative difference between the two categories), which is (1) more offensive anyway, and (2) unlikely to be confused with legitimate artistic works. (How many legitimate art works depict actual intercourse?).
I’ve wondered if Congress could pass a law making contracts for the sale or production of poornography unenforceable.
It seems to me that this itself raises First Amendment problems.
California tried something like this several years back: prosecuting p0rn producers for prostitution, i.e., for paying people — actors — to have sex. The courts rather quickly (and correctly) held that the state can’t make an end run around the First Amendment to outlaw non-obscene expression.
An alternative tack might be to approach from the IP side. Completely strip p0rn of any IP protection.
This may be somewhat more viable, as there is precedent in trademark — the Lanham Act allows the USTO to reject registration of scandalous or immoral marks. There is of course a fairly serious practical, if not legal, problem in allowing a federal agency to decide what is and is not immoral, and the Office’s track record on this isn’t too good.
But in Kaimi’s world, we get the reverse of Matt’s world: p0rnographers will use contract as a substitute for property, essentially resorting to trade secrecy, much the way database providers, fashion designers, and others with no IP protection do now.
How many legitimate art works depict actual intercourse?
Quite a few, that I can think of offhand, actually — and going back to at least the middle Egyptian period.
Kaimi, I think free pr0n is great! Wait, I mean, er…
What I really meant to say is that the world would probably be a better place overall if the synergy between Mammon and Babylon were lessened or eliminated. One guy with a camera and a victim or accomplice can do a lot of bad things, but not close to the scale that a multi-billion dollar pr0n industry can. If there were no copyright on digital pr0n to enforce an artificial scarcity, the money drains out of the system and the market dries up. Without money involved, there are no professional pr0n photographers and producers, only amateur night every night until the end of time, and production values and product quality decline. Sure, you can still take pictures of nekkid people doing unwise things, but it’s much harder to achieve the effect of “Live! Your! Fantasy!” and more likely to come off looking like simple exploitation or simply looking pathetic. After enough visual reminders that the illusion is not real, people will, hopefully, realize that they have better things to be doing.
(I’ve wondered about what happens to markets without scarcity before in other contexts; any corrections or suggestions, Frank?)
By the way, I suspect that using the word “porn” once or twice won’t raise our Google ranking for that search term very much. On the other hand, “p0rn” has been an almost standard way of designating stashes of dirty pictures since the early days of the Internet, so you might end up attracting people who will be a little disappointed in the lack of visual content, but more disappointed that they can’t find the “gamez,” “appz,” and “0-day warez” directories.
Jonathan Green,
On the decoupling — exactly. There are a lot of sins that aren’t encouraged, because no one is making any money off of them.
On the google rankings — I just remember Baron of Deseret’s comments. A year or so ago, he posted on the topic (his title) “pornography and free agency.” Within weeks, he was getting lots of hits on the search term “free pornography.” I would like to avoid that.
Obi,
Agreed, there’s probably more real art than I’m thinking of. How about a rebuttable presumption, allowing someone to argue that it is indeed legitimate art? (Are we back to 70’s era obscenity law now, with their “art” components? It may be close, but hopefully a workable exception could be crafted).
Agreed, there’s probably more real art than I’m thinking of. How about a rebuttable presumption, allowing someone to argue that it is indeed legitimate art?
Talk about prior restraints! Do you really think there will be any such “legitimate” art if the artist knows that she is going to have to overcome a legal presumption that it’s not?
I really prefer the current Miller line that keeps the state comfortably far away from anything that might be legitimate art.
2 points:
It seems reasonable that we give up any “legitimate art” showing sexual intercourse until, say, the celestial kingdom where presumably we would no longer be in danger of destroying ourselves by exposure to its substitutes. These seems like a pretty easy cost/benefit analysis. As great as the Venus statue is, I don’t think it has saved as many souls as -P- has damaged. And if you disagree, well there is probably some other line you’d be willing to draw where the social benefits are best deferred until after mortality.
As for the IP question, normally we grant a monopoly in order to encourage innovation, at the cost of limiting distribution Thus things that violate property rights of the copyright holder (as Kaimi discusses) would discourage innovation in -P-. If it weren’t for the innovation, the best (in this case, worst) thing to do is to get rid of trade restrictions and allow free copying of the IP. So the question is, is -P- driven by “innovation”, i.e., new pictures and movies done with new movie-making techniques and/or big budgets, or would it be pretty much as damaging with free distribution of the old stuff. I am not sure we know.
So the spiritual consequences are, as Kaimi pointed out, unclear. The way to figure it out is to decide if you think profit-driven innovation is stimulating a lot of demand which would otherwise dry up. If so, IP violations are good.
I like the idea Matt mentions of not enforcing -P- contracts. This preserves some space for free speech, while hammering the incentives of “evil and conspiring men in the last days”. It would also probably drive -P- back into the hands of the Mafia or some other group that can do its own contract enforcement. Marriott would be out of the business though.
Kaimi,
I am not a lawyer, but even I know that any copyright protection of the Venus de Milo ran out long ago. Besides that, the content producers would go nuts about any weakening of IP laws. Given the recent Mickey Mouse Protection Act (Sonny Bono Act) it seems clear that congress has zero interest in lettting anything ever go into the public domain again. Also other countries would go nuts because the USA would become a pirate nation in their eyes as far as the unprotected content went. This would cause all sorts of trade problems.
While I think that your idea is an interesting one, I don’t see any way that it will happen.
Would legislation that requires all p*rn related sites to use a .prn URL address rather than .com or some other such measure address this problem?
Not a bad idea, John.
A few years ago some college student from the business school knocked on our door and told us about a push to lobby for such legislation–I wonder what is happening with that?
Reaching back into the foggy corners of my memory, I seem to remember that there was some sort of initiative along these lines in Utah. Something about denying enforcement of phone charges for the 900 numbers and international dialers. Am I just making up pleasing history, or does anyone else recall something like this. If I’m not mistaken, it was around the 1989-1991 time frame.
John Fowles, there was a movement a couple of years ago at ICANN (the adminitrators of the of Top Level Domains (.com, .org, etc.)) to require poorn producers use a .xxx TLD. It wasn’t adopted, but Congress could move there, too, because they still have — I believe — some control over ICANN.
Two thoughts.
First, I think it is likely that google will win. The Sony betamax case established that makers of VCRs weren’t liable for copyright infringement merely because someone might use the tool for that purpose. Some post Napster cases on music file sharing have expanded that prinicple. So, maybe there is a trend here. Still, a weakness in google’s defense might be if the facts show their search engine deep links passed proprietay access walls into websites it searchs. Even so, I think its likely that google will prevail on the Sony/music file sharing rule, and because no one wants – p – to win.
Second, this is another negative spiritual development, even if google wins. I expect that it has been known for a long time that google’s search engine can do what it does. So why the law suit now? Something in me thinks that maybe a significant part of the reason for the law suit is to advertise. Law suits always get news coverage in channels where advertisements for – p – would never be allowed. What better way to advertise – p – than through legitimate news channels? Fifty percent of any advertising does no good anyway and is money down the drain, so why not advertise by paying lawyers (which some think is also always money down the drain).
Since I expect a major purpose of the law suit against google is publicity, the – p – industry player must think there will be some net benefit to free access to glimpses of – p -. Marketing theory agrees supports that. I still remember a marketing professor in first year B-school talking about how to market illegal drugs. We learned that the best thing to do would be to hand out free samples at elementary schools. Free samples is the way to market any adictive substance. Is the Greek law suit against Stone’s new movie protraying the h0m0 nature of Alexander the Great merely promotional advertising through news? Surely the Greeks know their own vases and art don’t support their position. And where is the damage in that case? Don’t they know the first article of faith? “We believe that the Greeks will be punished for their own sins and not for Alexander’s transgression.”