Free porn isn’t unfair competition to paid sites, court rules

Every day, paid services compete with similar free services. Take for instance paid Sirius satellite radio subscriptions as opposed to standard over-the-air FM stations. Sirius charges a subscription fee to provide a value-added product that their subscribers have chosen to pay in order to receive some commercial free and original programming that is not available via a free FM signal.

This free-versus-paid scenario also plays out with television programming, print publications, mobile device applications, and even pornography. In the case of the pornography industry, however, one porn producer felt that a free streaming website was taking away from his website’s subscriptions and thus he decided to file a lawsuit.

Free porn isn't unfair competition to paid sites, court rules

Kevin Cammarata, a pornographic video producer in Los Angeles brought the lawsuit against Redtube owner Bright Imperial Limited of Hong Kong and the website’s advertisers, alleging that Redtube’s free porn streaming business model violated California’s Unfair Practices Act and had caused “many millions of dollars of damages to proprietors of adult entertainment websites.”

“These defendants are selling and giving articles or products, namely adult entertainment videos, at less than the cost of such videos to such defendants, for the purpose of injuring competitors and destroying competition,” Cammarata’s complaint read. It also stated that the “negative effects” of Redtube’s business entitled him to “injunctive relief, treble damages and attorneys’ fees.”

Redtube’s attorneys, of course, disagreed with Cammarata’s allegations and moved to have the case dismissed as a strategic lawsuit against public participation (SLAPP), which is a lawsuit that is brought for the purpose of intimidating or censoring one’s opposition.

Last week, California’s Second District Court of Appeals ruled that there was not enough evidence to prove that Cammarata’s business had been hurt by Redtube’s business model or marketing strategy, and granted the SLAPP order. Furthermore, it compared Redtube’s business model to the same used by broadcast radio, television stations, and local newspapers in the United States.

“Fundamentally, there is no difference between Redtube and a radio station in the early 1900s that broadcasted records it obtained for free from a music store and, in return, told its listeners where the records could be purchased. (See www.oldradio.com/current/bc_spots.htm; last visited Dec. 7, 2010.) In both cases the broadcaster’s purpose is not to destroy competition or a competitor but to attract patrons to its broadcast site where they will, hopefully, respond to its advertisers’ messages.”

Thankfully, we can chalk up this victory for free speech as well as free enterprise. Because the court ruled in favor of free porn, our free television, radio, and print publications are safe for now.