Every now and then, hypocrisy reaches a level of such cognitive dissonance that it approaches the level of art — or perhaps really low humor. Such is the case of Vivid Entertainment co-founder Steven Hirsch, <a href=”http://www.australianit.news.com.au/story/0,24897,23217818-15318,00.html>who recently expressed his deep concern that Google, Yahoo! and other search engines may expose children to porn. Hirsch called on search engines to “erect strong barriers” to children finding pornography. No doubt he also offered to “increase the size of their filtering package” so that their defenses against “naked porn stars and exxxplicit sex acts” could be “rock hard.” Sadly, his personal emails to Eric Schmidt and Jerry Yang on the subject keep getting caught in their spam filters.
Hirsch made his comments at the Yale School of Management, which invited him to speak at their “sex week” speaking series (no doubt in the hopes that the freshmen up at Yale could, at last, finally get some tail). As always, it is wonderful to see the spectacle of a pornographer suddenly struck by a deep concern that children might accidentally get exposed to porn. It becomes a bit more suspect, however, when it involves mandates on another industry that just amazingly happen to coincide with Vivid's financial interests. After all, if it became more difficult for search engines to “expose children to pornography,” we can expect that folks actively seeking pornography will turn to the most well known sources and those that can afford to buy links on search engines that do verify age — like say, Vivid. Certainly it will be much more difficult for folks to find all that free stuff and porn file sharing sites that Mr. Hirsch complains are responsible for declining DVD sales.
Mr. Hirsch cannot, of course, be blamed for following in the footsteps of the RIAA, MPAA, and other IP Mafia luminaries. All have made similar claims that the technology mandates they wish to impose on other industries are about protecting children, or about national security, or any other ridiculous claim. None are willing to admit that these measures also have the effect of preserving their business models from competition — and at the expense of others. Indeed, it may well be that Mr. Hirsch does not suffer so much from hypocrisy as “lobby envy.” His adventures recently have shown an astonishing similarity to his more reputable brethren. For example, in what can only be described as the “Adult” version of Viacom v. Youtube, Mr. Hirsch's Vivid recently sued a company called (I swear I am not making this up) “porntube”. (Or am I the only one who had no idea this website existed until I saw the Reuters story?)
In an even more obvious sign of his “lobby envy,” Mr. Hirsch — like the RIAA and MPAA — blames the decline in the market for his product on online file swapping. Although he has perhaps somewhat greater cause to doubt that the availability of clips online helps to promote product sales. As Mr. Hirsch so eloquently put it:
“Two or three minutes — that's all you need,” Hirsch says. “After watching two or three minutes of hard-core 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.”
What this says about the Miller v. California analysis I'm sure I don't know. But it does seem to raise some interesting fair use questions. Given the Supreme Court's analysis in Harper&Row v. the Nation, how much is permissible to borrow under fair use if “2-3 minutes is all you need”? (Although, if the spam I get is true, there are products that will help you watch for up to 15 minutes).
Leaving such intriguing research aside, I think it safe to say that we haven't seen the last of Mr. Hirsch and the efforts of his fellow “adult entertainment” purveyors in the IP mafia realm. Of course, given the number of real ****heads and ***holes and other anatomic expletives already working for the IP mafia, I expect Mr. Hirsch will feel right at home.