Will I be Sued for Supporting Piracy?

    March 20, 2007

Disclaimer: I’m not a lawyer, and nothing I say should be taken as any sort of informed legal opinion.

In the wake of Viacom’s recent suit against Google and YouTube, advertisers should consider whether or not they want to advertise against illegally reproduced print, audio, and video online. From a moral perspective, is it okay to advertise against pirated content? From a legal perspective, can advertisers be held liable by content owners for supporting pirated content? Finally, from a marketing perspective, would it hurt your brand to be associated with pirated content?

Before I get into this, I want to be clear on what I mean by illegally reproduced content. For print, suppose that a blog, or even a “legitimate” newspaper were to copy and paste content from the New York Times online and publish it without paying the Times’s licensing fee. For audio, suppose someone with a Web site and a lot of hosting space reproduced a song or podcast without the owner’s permission. Finally, for video, suppose somebody recorded a movie or TV show and published it on his blog. None of these activities are legal. Further, many of these perpetrators earn revenue by running display, audio, or even pre- or post-roll video ads against their content.

As an advertiser, you could easily and unwittingly have your ad run against this illegal content. Many ad networks, like Google’s AdSense, RightMedia’s Exchange, and Brightcove’s AdNet (currently in Alpha) have a huge volume of publisher sites. In fact, the more publisher sites they have, the more attractive the network is to advertisers. Most of these publisher sites serve ads dynamically, meaning that advertisers sign up to have their ads displayed on the network, set some general parameters, and beyond that have limited control over where their ads appear. Some of the publisher sites may have illegally reproduced content, and those advertising against it may not know about it.

That means you could be supporting illegal content, and the person who reproduces it. If you believe that content creators deserve to be compensated for their labor, then morally you’re in dangerous territory here. But even if you believe that all content should be free, and its creators unpaid, as an advertiser you undermine your own ambitions by supporting illegally reproduced, non-original content. The reasoning behind this is simple. If there’s a dearth of high-quality, original content, your advertising audience will reduce their media consumption habits, thus reducing your impressions.

More relevant than moral implications, however, are the potential legal ramifications of advertising against stolen content. A relatively thorough search hasn’t turned up any instances where advertisers have been sued for supporting illegal material. However, the ad-supported content model is relatively new online. What has happened in the past is content owners suing ISPs for their subscribers’ reproduction of unlicensed content. Intuitively it seems wrong to hold ISPs responsible for the actions of their subscribers, and yet at least one judge ruled in favor of the copyright holders.

If an ISP can be liable for the actions of its subscribers, it seems possible, however remotely, that advertisers could be held responsible for the actions of their publishers, especially when you consider the international implications of the Internet. After all, your ad could run against an illegally reproduced Japanese video. I don’t want to even begin to speculate on international copyright law.

Finally, from a marketing perspective, it is unlikely that your audience would much care if they saw your ad against illegally reproduced material. That is not to say that most people are unprincipled, but rather that most people don’t have time or inclination to really consider the source of the media they consume, much less weigh issues of abstruse copyright law.

If pirated material continues to proliferate online at its current rate, advertisers who are looking to scale will probably be forced to market against illegally copied material. At the same time, the litigiousness of content owners is likely to increase as well. This is a decision that advertisers will be forced to make. They’ll have to set their own priorities and conduct their own cost-benefit analyses. I would sum it up by thinking about it like speeding down a highway. Although most people do it, only a few get caught. But getting caught is never any fun.