Child Pornography Lawsuit Against Pornhub Can Go Forward

So holds Judge L. Scott Coogler (N.D. Ala.) in today's Doe v. MG Freesites, LTD. An excerpt from the long opinion:

[I]f Plaintiffs' allegations are true, Defendants, through Pornhub and other sites, host and harbor child pornography—i.e., knowingly receive and possess it—which are illegal acts under the United States Code and which are prosecuted in proceedings against individuals every day. How, then could a corporate defendant escape punishment for the same illegal conduct? Further, Plaintiffs' allegations here are … that Defendants not only received, possessed, distributed and failed to remove CSAM [child sexual abuse material, such as children being raped or assaulted], … but they also played a vital role in the creation and development of CSAM, such as by using keywords and tags to encourage users to find CSAM, such as the "Lil" tag used on videos of Plaintiff Doe #1.

The court also concludes that Pornhub's actions, if they were as alleged, wouldn't be protected from civil liability under 47 U.S.C. § 230: "that Defendants are not subject to Section 230 immunity … [because they] materially contribute to the creation of illegal content on their platforms."

Comments

[Bob from Ohio]

A decent society would never have a Pornhub.

[JSinAZ]

Can you name a single “decent” society, contemporary or historical? Pron daguerreotypes circulated widely when Victoria was Queen, and cartoons before that.

[Bob from Ohio]

They were not legally circulated, neither should Pornhub be allowed to legally exist.

[WuzYoungOnceToo]

They were not legally circulated, neither should Pornhub be allowed to legally exist.

Because they're hosting kiddie porn? If so, then I agree. Or is it some other reason?

[Bob from Ohio]

Because they are hosting porn.

[WuzYoungOnceToo]

Ah, so you're a "I should be able to use the power of the state to force my will onto consenting adults" sort. What the hell brings you to an allegedly libertarian-leaning website?

[LawTalkingGuy]

Plot twist: he’s a radical left wing feminist who thinks that consent to sex work can’t exist in a capitalist patriarchy.

[Bob from Ohio]

"What the hell brings you to an allegedly libertarian-leaning website?"

Mostly libertarian.

All law is morality.

[Rev. Arthur L. Kirkland]

Bob from Ohio says he is "mostly libertarian."

The Volokh Conspiracy says it is "often libertarian" and "libertarianish."

Just a bunch of sheepish right-wingers prancing about in silly, unconvincing libertarian drag.

[David Nieporent]

Bob from Ohio says he is "mostly libertarian."

Reading isn't your strong suit. (Nor thinking.) He said that the website is mostly libertarian, not that he is.

[Rev. Arthur L. Kirkland]

I was wrong. So are those who figure Bob or Prof. Volokh resemble libertarians.

One difference: I am on the right side of history.

[WuzYoungOnceToo]

All law is morality.

That's not even remotely true. And even if it were, there's nothing inherently "moral" about using the power of the state to infringe on the rights of consenting adults.

[Bob from Ohio]

It is completely, utterly true.

[WuzYoungOnceToo]

So Bob thinks like both a Taliban and a Communist.

[Armchair Lawyer]

Depends on your morals.

[Brett Bellmore]

“To be GOVERNED is to be watched, inspected, spied upon, directed, law-driven, numbered, regulated, enrolled, indoctrinated, preached at, controlled, checked, estimated, valued, censured, commanded, by creatures who have neither the right nor the wisdom nor the virtue to do so. To be GOVERNED is to be at every operation, at every transaction noted, registered, counted, taxed, stamped, measured, numbered, assessed, licensed, authorized, admonished, prevented, forbidden, reformed, corrected, punished. It is, under pretext of public utility, and in the name of the general interest, to be placed under contribution, drilled, fleeced, exploited, monopolized, extorted from, squeezed, hoaxed, robbed; then, at the slightest resistance, the first word of complaint, to be repressed, fined, vilified, harassed, hunted down, abused, clubbed, disarmed, bound, choked, imprisoned, judged, condemned, shot, deported, sacrificed, sold, betrayed; and to crown all, mocked, ridiculed, derided, outraged, dishonored. That is government; that is its justice; that is its morality.”

That is law.

[JSinAZ]

“All law is morality”.

I think feudal Japan would agree, but fortunately mine and my neighbors’ moral boundaries are not defined by my states revised statutes.

[M L]

He didn't say all morality is law.

[LawTalkingGuy]

Are there any societies that have successfully repressed expressions of sexuality in any type of media? I don't mean simply as a matter of law, but an actually successful widespread cultural antipathy to it? So widespread that even elite members who could get away with it felt bound by cultural norms?

[Bob from Ohio]

Are there any societies that have successfully repressed theft?

[LawTalkingGuy]

No. But if that’s your analogy you must mean that there are no decent societies because the prurient can’t be effectively suppressed by it.

[Bob from Ohio]

"prurient can’t be effectively suppressed"

You can't stop everything. Modern "liberal democracies" are the first to not even try.

[LawTalkingGuy]

Are you sure about that? No one would characterize Ancient Greece or Rome as “liberal democracy” and there didn’t appear to be strenuous efforts at suppressing sexual expression.

[Bob from Ohio]

We have almost zero knowledge of how Greece and Rome's regular population lived or what they thought. Its all fragments of upper class life.

[gormadoc]

You believing that we know nothing of a common Greek or Roman and extrapolating that into "they regulated porn" is missing more than a few links.

[Rossami]

Actually, we know quite a lot about how the regular populations lived. Yes, we have a bit more complete data on the lives of the upper classes but to imply that we are ignorant of the rest is quite badly wrong.

What we do know, by the way, is that sexual mores changed over time but clearly included large periods where open expression by all non-slave classes was commonplace.

[David Bremer]

Well, that's not entirely true, and reality doesn't help your claim.

https://en.wikipedia.org/wiki/Roman_graffiti

[WuzYoungOnceToo]

We have almost zero knowledge of how Greece and Rome's regular population lived

Do you have a mouse in your pocket?

[Bob from Ohio]

Fine, I will withdraw the "Modern "liberal democracies" are the first to not even try." comment.

Its besides the point, porn is harmful to both men and women and should be banned.

You perverts are welcome to disagree.

[santamonica811]

Bob,
Is it okay with you if non-perverts also disagree with you? (Or, is your definition of pervert: "Anyone who disagrees with me on anything relating to sex.")

[Bob from Ohio]

No, just "a person whose sexual behavior is regarded as abnormal and unacceptable."

But it was a joke.

[WuzYoungOnceToo]

Its besides the point, porn is harmful to both men and women and should be banned.

A great many things that people consume/engage in/etc are "harmful" to them in one way or another when consumed/engaged in beyond certain limits or in certain ways. Cigarettes, alcohol, mountain climbing, auto racing....sugar. That is not a valid basis for using the power of the state to forbid free men and women from choosing to consume/engage in them.

You perverts are welcome to disagree.

You've already proven yourself to be a fan of childish and disingenuous argumentation tactics, there's no reason to continue doing so.

[Bob from Ohio]

It was a joke.

[WuzYoungOnceToo]

It was a joke.

I'll resist the obvious response.

[David Nieporent]

porn is harmful to both men and women

You're doing it wrong.

[Michael P]

He's more right than wrong. Take, for example, Billie Eilish's gripe about how porn is distorting young people's ideas about what kinds of sex are typical or approachable for the non-athletic. Part of this is because parents are loath to discuss that with their children, and porn is only one contributor to that distortion. Except for a particular definition of consent, sex education in schools seems more interested in teaching oral sex than moral sex.

[WuzYoungOnceToo]

what kinds of sex are typical or approachable for the non-athletic

So the "harm" in question is people suffering Charlie horses?

[AmosArch]

This is a supposedly free society not talibanland. If we are supposedly to celebrate dudes cornholing each other in the name of individual liberty I don't see whats so awful about some guy looking at tits in his basement.

[Alpheus W Drinkwater]

Although one wonders how these tits ended up in his basement, and whether or not they are attached to a living woman.

[santamonica811]

Heh. The perils of the English language. 🙂

("I once shot an elephant in my pajamas.")

[MatthewSlyfield]

"Although one wonders how these tits ended up in his basement, and whether or not they are attached to a living woman."

Wonder no more.

https://anniesdollhouse.com/?gclid=EAIaIQobChMI09Hi9Kb09QIV-RPUAR1dSARjEAAYASAAEgJqO_D_BwE

[Alpheus W Drinkwater]

Come on, man! Now that's in my browser history!

[Squirrelloid]

Plot twist: the tits he's looking at are birds.

[SimonP]

Amos - you should understand that all of your conservative trolling serves precisely these people. The Bobs of the Republican Party will come for your porn, once we give them the power to do so.

[Brett Bellmore]

The locals down here in the South always wonder why I laugh when they refer to bean bag toss as "cornholing". Apparently that slang is regional.

[LawTalkingGuy]

Lol, what an insufferable moral scold.

[David Nieporent]

A decent society would never have Bob from Ohio.

[Don Nico]

Now, we're talking.

[MatthewSlyfield]

Bob from Ohio and Rev. Arthur Kirkland ought to both be banished to the same deserted island.

For a better society!

[DaivdBehar]

Porn was legalized in Denmark in 1967. The rapes of real women dropped 40% in 1968. An on-off historical experiment also took place in Japan with child porn. Legalization dropped the reports of child sexual abuse by a similar fraction. They went up after re-criminalization a few years later.

[DaivdBehar]

Naturally, I visited Pornhub after hearing about it here. I searched for "lil" I just saw a bunch of diverse, aging, stripper looking skanks. It was disconcerting, but not because of depictions of children, but because the actors were repulsive. You fucking lawyers need to be beaten with a big stick, not a "lil" stick. "Lil" is a hood term by diverses.

[gormadoc]

Do you always tell the internet about your porn excursions?

[Michael P]

Meet the most unfiltered man in the world (or at least the Volokh Conspiracy's comment section).

"I don't always visit porn sites, but when I do, I complain about them in another site's comments."

[gormadoc]

"Lil Abner" was, in fact, not child pornography! Rent seeking lawyers, yada yada..
- DavidBehar

[Rev. Arthur L. Kirkland]

I think Bob from Ohio and Prof. Volokh crossed signals here.

This wasn't a 'lather the right-wingers' post.

This was a 'if I talk about free speech enough maybe people won't notice my healthy appetite for conservative censorship' post.

[Kazinski]

Better not check out any ancient Greek pottery art, Roman friezes, Hindu temples, Angkor Way, etc.
Nandi Temple, Khajuraho India

Yet those "indecent" societies are the foundation of modern civilization.

And so much for your argument they weren't legal. It's hard to build a massive temple complex on the downlow.

[Kazinski]

Damn spell checker. Angkor Wat.

[Krychek_2]

Guys my age watch porn for the same reason we watch football: It reminds us of what we used to be able to do.

[Chernobog]

Northern District of Alabama, not Middle.

[Eugene Volokh]

Whoops, fixed, thanks!

[damikesc]

I'd question how Pornhub would KNOW the age of the "performers". They do not have ready access to their birth certificates/driver's licenses. Hell, I'm not even sure if they know their real names.

[Bob from Ohio]

Federal law require porn producers to verify the ages and keep records.

[Kevin Smith]

Pornhub isn't a producer as defined by federal law

[Bob from Ohio]

Isn't that what the lawsuit is partly about? Its participation ["materially contribute to the creation of illegal content "] makes it a producer subject to the law?

[loki13]

No. That's from the Sec. 230 analysis.

Which is bad. Really bad.

[Rev. Arthur L. Kirkland]

"No. That's from the Sec. 230 analysis. Which is bad. Really bad."

Regular "really bad," or Alabama "really bad?"

[loki13]

Regular really bad.

I'll put it to you this way- if a district court in the 11th COA is enthusiastically citing a district court in the 9th COA ... especially one in California ... you know the judge is engaging in results oriented-reasoning.

(If you don't get the joke, it has been my experience that the 11th and the 9th are two circuits that absolutely, positively do NOT cite each other's opinions, and in some areas of the law consider the other circuit to be "anti-precedent")

[Michael P]

Yes, this ruling omits the inconvenient parts of the Roommates case, and cites the mountain of cases contrary to the result here -- just to hand-wave them away as obviously different. The wording used to string together facts in an attempt to reach "materially contributes" betrays how weak the logic is. The ruling cites the Ninth Circuit's explanation of what that means (not "augmenting the content generally, but to materially contributing to its alleged
unlawfulness"), but never clearly explains how Pornhub itself materially contributed to the unlawfulness of the CSAM. There's just a bunch of language about training documents and keywords.

[Kevin Smith]

I agree with Michael P below that the ground for that is very weak, especially as it relates to keywords and tags "materially contributing to the creation" of anything

[WuzYoungOnceToo]

I agree with Michael P below that the ground for that is very weak, especially as it relates to keywords and tags "materially contributing to the creation" of anything

Especially given that many of the tags they cited could legitimately and quite reasonably be used to refer to attributes other than being a minor.

[AmosArch]

They don't. This is probably one of those 'be psychic or give me a bunch of money' deals. Which given society's obsession with regulating how men get off while whining about how bad women have it for having to pay a few bucks for birth control, unfortunately has more momentum than it deserves.

[Noscitur a sociis]

The United States is the country with the highest daily traffic on Pornhub, and Alabama users rank second in the nation in time spent on Pornhub.

I'd assume this means per capita, but still an impressive performance.

[WuzYoungOnceToo]

If the stat is based on this...

https://www.al.com/news/2018/01/alabama_lands_near_the_top_of.html

...it refers to the average amount of time spent per visit on the site by users from a given state, not the total time, nor anything on a per-capita basis. Combine that with the relatively low difference between highest average time (Mississippi, with 11 minutes, 33 seconds per visit) and the lowest average (Kansas, at 9 minutes, 5 seconds) I'm not sure if there's any significance to the statistic at all.

[TwelveInchPianist]

"it refers to the average amount of time spent per visit on the site by users from a given state..."

So it really is an impressive performance.

[Kevin Smith]

11 minutes spent finding what you want to watch, 33 seconds spent watching it

[santamonica811]

Ouch!

[WuzYoungOnceToo]

So it really is an impressive performance.

Especially if my wife is reading this.

[Davedave]

Is it actually a proxy for internet speeds, and Alabama has the slowest and therefore longest loading times?

Or is it just that Alabamans take longer on porn sites because they have to keep scrolling past their sisters?

[VinniUSMC]

Scrolling past their sisters? I figured they got confused by the results when they typed "sister" and none of them turned out to be their sister.

[Michael P]

It seems to me that the grounds for saying that the defendants "materially contribute to the creation of illegal content", and are therefore not protected by Section 230, are quite weak. https://blog.ericgoldman.org/archives/2022/01/catching-up-on-recent-fosta-developments-none-of-them-good.htm discusses an extremely similar case, which this court relies on to reach the same conclusion as to the same defendants (and presumably different plaintiffs), in more detail.

[AmosArch]

Where are these supposedly virtuous people turning up these truckloads of illegal pornography behind every tree and underneath every rock? In my decades of websurfing I don't believe I've ever seen a single one of these images even in the wild west 90s where trolls were allegedly posting them everywhere to get people in trouble yet they are supposedly all over the place like some very extroverted unicorn.

I guess the issue here is a bunch of 17.9 year old girls who look exactly like 25 year olds regretted their girlsgonewild videos with the help of their shyster lawyers and expect websites to be psychic or a big payday?

In my experience its the opposite issue. Websites are so terrified of running afoul of CP that they generally go out of their way to make sure in all videos the women are mature looking. These days its difficult to find anything with a woman that doesn't look like she is at least well into her late twenties/early thirties.

Err...not that i look at that awful disgusting stuff. My friends just told me all about it.

[gormadoc]

Is your friend Bob and is he from Ohio?

[BravoCharlieDelta]

They should add twitter and YouTube, those places are filled with child porn and not removed because they don’t want to hurt the LGBTQP community.

[Social Justice is neither]

So if the creation of a tag (nevermind who actually adds the tags) for generic purposes is enough to pierce 230 by "materially contribute to the content" then 230 is dead if this were applied consistently. All of the fact checks and redirects to other sources contribute much more to the creation to the end content and they are explicitly added by, or at the direction of, the media organization.

[Brett Bellmore]

Heck, the fact checks are way beyond Section 230's protection by any reasonable reading at all; They're produced by selected people and groups acting as agents of the site.

It would be different if a site just generally made attaching a "fact check" to content the sort of thing any user of the site could do. But they don't, they designate fact checkers, and give them special powers not exercised by users of the site.

[ReaderY]

Section 230 creates a safe harbor for sites that attempt to eliminate indecent or otherwise objectionable material. The Facebooking k people you’re referring to arw at least claiming to do that, and courts have generally accepted their claims. But Pornhub clearly isn’t doing anything like that. So while Facebook gets in Section 230’s safe harbor, Pornhub has to be judged by the standards outside it.

So what the plaintiffs are claiming here - Pornhub is using tags, curatorship, etc. to facilitate child porn — has to decided by a different legal standard than Facebook. Facebook gets the safe harbor. Pornhub has to risk the storm.

I don’t know if the allegations are true. But Facebook isn’t a comparable example.

[Michael P]

Why is it not comparable? Facebook proper is a leading source of CSAM. Add Instagram and WhatsApp, and Meta is probably the largest source of that kind of stuff.

[AmosArch]

Pornhub definitely has been cracking down on not just illegal stuff but also nonvanilla content and they've even gone woke in some of their marketing. I'm not really sure whats materially different from Facebook et al's approach other than they obviously can't start removing porn wholesale without defeating the purpose of the site.

[Social Justice is neither]

The problem with this attempt to pull the two apart is pornhub does make attempts to remove both CP and revenge porn, namely by only using sites or publishers that should be doing that authentication explicitly. So, no Facebook is not different from Pornhub unless you're demanding authentication at every step on the distribution chain for some.

[fafalone]

Facebook is different from PornHub in that PornHub takes more precautions than Facebook.

PornHub manually reviewed all submissions, so all the number of cases is small and involves those who are plausibly of age by sight alone.

Facebook doesn't and can't do the same, and CSAM of all ages floods the platform since they can generally only filter that which has already been identified and added to the database.

[David Nieporent]

and CSAM of all ages floods the platform since they can generally only filter that which has already been identified and added to the database.

Um, no. Now, Facebook shows you things based on what posts you "like" and choose to read, so maybe your experience is different for a reason.

[VinniUSMC]

I believe that fafalone's point was that Facebook receives a lot of content, and their moderation is much more reactionary (automatic screening is limited to that which has already been reacted to prior) requiring users to flag content, versus the assertion that PornHub screens content actively prior to posting (whether that is true or not, I've no idea).

But, that's what happens when you selectively quote people in order to misrepresent what they said.

[Brett Bellmore]

"(2)Civil liability
No provider or user of an interactive computer service shall be held liable on account of—
(A)any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or
(B)any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1)."

But "fact checks" don't fall under this protection because,

1) Being 'wrong' isn't one of the listed causes for removal, or reasonably related to any of them,

But more importantly, because

2) Fact checks aren't removal. They're commentary. They're "content", not the removal of same.

Section 230 protects removal of content, but not leaving it up while bad-mouthing it. The bad-mouthing is content, and the platform's own content, not user content.

[ReaderY]

Like it or not, several lower courts have said “otherwise objectionable” includes fact checking.

[MatthewSlyfield]

fact checking qualifies as "otherwise objectionable" content? Good to know.

[ReaderY]

And the fundamental thing here is that pornhub is being accused of taking steps to promote and facilitate access. It’s not being accused of restricting access at all, to anything.

The safe harbor for claims of wrongfully restricting access just doesn’t apply when there’s no allegation access is being restricted.

That’s the difference.

[Michael P]

The start of section 230(c)(1) protects the part before restricting access:

"No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

Pornhub is that first provider here, because they are hosting (facilitating access to) "information provided by another information content provider".

[ReaderY]

But the claim here is precisely that they are not limiting themselves to just passively hosting information provided by someone else. The complaint alleges that they are actively adding content of their own, and this added content is what the plaintiffs are complaining about.

That’s why the judge ruled the complaint alleges conduct not protected by section 230.

Section 230 protects acting on your own to restrict or censor content. But it doesn’t protect acting on your own to enhance or promote it.

[Brett Bellmore]

I really do not think indexing and search capabilities are going to be construed as platform originated "content", on appeal at least. That line of reasoning would limit 230 protection to sites that did nothing more than make a drive accessible from the internet.

[benji]

Yes, the "fact checks" are protected by the First Amendment.

[Brett Bellmore]

Never said they weren't. Section 230 provides protection well beyond the 1st amendment.

[David Nieporent]

Heck, the fact checks are way beyond Section 230's protection by any reasonable reading at all; They're produced by selected people and groups acting as agents of the site.

I mean, that's not actually true, but even if it were, it's kind of irrelevant since fact checks aren't actionable in the first place.

[Brett Bellmore]

No, that is actually true, beyond any sane doubt. Fact checkers are chosen by the platform and specially empowered by the platform to do the work, which work is adding content.

[Jerry B.]

So if someone reproduced kiddie porn on a Xerox machine, and mailed it out to friends, would Xerox and the USPS be liable?

[fafalone]

"How, then could a corporate defendant escape punishment for the same illegal conduct?"

Unfortunately the judge didn't consider that under his theory, no corporation allowing user submitted content would be able to avoid being a defendant he would have punished.

Facebook remains the world's largest distributor of CSAM. Rivaled only by the FBI/Austrialian joint task force that distributes most of the CP on the dark web. I'd ask how serious the government thinks distribution really is when they're one of the largest distributors, an act they undertake to play the shooting-fish-in-a-barrel game of prosecuting the 1% or so of clients they bust for possession.

[gormadoc]

Last year (or maybe the year before) a Canadian group (private but partnered with the government) was searching for CP by uploading it to search engines/services and then searching for matching images. SauceNAO was getting hit with mass reports because the uploaded image itself was found in the cache, even if the image wasn't originally there.

[John F. Carr]

From the memorandum, based on the complaint: "The Defendant entities own and/or control the majority of the pornography on the Internet."

Is it time for some porn antitrust action? Time to give those companies a good, hard pounding?

[Squirrelloid]

Is it important if the company enjoys it?

[John F. Carr]

Some key scary sounding allegations are normal parts of how the way online services work. Computers suggest tags based on how other people have tagged similar content. Videos get thumbnails generated.

The existence of a blacklist of bad words is turned to Pornhub's disadvantage; by trying to restrict descriptive text they end up looking worse in the eyes of the law. This is the trap that led to section 230 immunity.