Queer Porn is a collaborative, open-communication-centric, intimate art that is as much the performer's concept as well as the director or producer. Queer Porn removes the various niches, stereotypes, and misconceptions that the dominant adult industry places on people based on how they look or how they fuck, and allows the performers and producers to make authentic, meaningful, sex-positive imagery that reflects our true sexual natures.
That the price of admission includes the real possibility of death serves to point out the seriousness of [barebacking porn actors'] commitment as well as the ultimate expendableness of what they experience as self. Danger is the boundary that demarcates their cultural territory.
It makes your dick bigger and your pussy wet!
Always responsive to and productive of technological development, the pornography industry has, in recent years, come to reflect the norms of an increasingly user-generated digital environment. In its current context, internet pornography represents a complex web of content owners, producers, distributors, licensees, users, uploaders, downloaders, actors, web hosts, and advertisers, and any one party may fill several of these roles at once. This essay is concerned, broadly, with the viability of pornography marketed as resistant or revolutionary within hegemonic capitalist and heteronormative social and economic practices. In stated attempts to fulfill the internet's utopian promise of a gift economy, to represent "raw" queer sex, and to generate feminist and queer representations of pleasure, the pornography producers examined here have used novel distribution methods—and curious approaches to intellectual property (IP)—to market themselves as different from the mainstream. As these parties leverage their own personae and consumer identities for control over the distribution and consumption of online pornography, they facilitate their own survival by helping to stabilise a new set of post-industrial sexual, social, and economic practices of everyday consumption. These norms mediate between the "pirate" culture promised by technology and the culture industry's interest in legitimising and entrenching IP rights.
To better understand the relationship between pornography and IP in the digital economy, I focus in this essay on changing processes of distribution. Nicholas Garnham, whose research in the late 1980s and early 1990s helped to define the culture industries as such, argues that "power in the cultural sector clusters around distribution" (2004, 140). What he means is that capital and labour in a post-industrial sector are most intensely concentrated in the infrastructure used to get products from producer to consumer, and not, as in industrial sectors, in production. Surrounding these distributive power clusters are "satellite" employment sectors, characterised by poor working conditions (2004, 140-141). If the goal is to critique the culture industries, writes Garnham, "we need to concentrate our interventions not on production but on distribution in the widest sense" (qtd. in Jones 2002, 216). This has implications for research on pornography, as focus since the sex wars of the 1980s has largely been on issues of representation (Lee 2014, Kipnis 1999, Williams 1989), with limited empirical attention to conditions of production and workers' reasons for becoming porn actors (Abbott 2000; Bakehorn 2000; Taormino et al. 2013; Thomas 2000). Targeting the intermediary between consumers and the satellite sites where porn is produced, study of porn's digital distribution can help us to make sense of what work porn does in society.
That contemporary porn's distribution is largely digital is significant. Analysing digital distribution in the record industry, Steve Jones explains that the priority for culture industries is to create monopolies of access to their products. While an industry traditionally had little control over events at the point of sale, and the production of ideas is impossible to monopolise, distribution of physical copies of cultural works was a matter of infrastructure, networks and logistics, easily controlled by a relatively small number of owners of capital (Jones 2002, 217). For Jones, digital distribution technologies are indeed "liberating" for culture, allowing greater geographical reach to independent artists. However, the technology of digital distribution still costs money, and whatever liberating benefits it offers are far more easily employed by businesses with substantial capital than by indie artists (2002, 219).
The right to own IP is a necessary component of any attempt to control digital distribution. Where distribution in space of physical copies of cultural works can be interrupted to check for piracy (that is, literally, a truck can be stopped and searched), digital copying involves near-instant and near-direct computer-to-computer transfers (Jones 2002, 220-221). Exclusive IP rights, in this context, are not just leftovers from laws designed for analog media. Rather, they are, as Jones describes, "the only weapon" available to a cultural content owner "in the struggle against the break-up of its monopolies of distribution" (2002, 220). Protecting IP is how culture industries make money, when consumers on the internet do not want to pay.
But three hundred years before pornography was a digital product protected by IP, obscenity and IP had a relationship in which they were, at least in part, mutually constitutive. In the first section of this paper, I offer a brief history of that relation. It is not my intention to provide a full legal history of IP and obscenity (for such a history, see Alexander 2013; Saunders 1990), but rather to offer what amounts to preliminary plot and character development for a story about three contemporary netporn businesses: Pornhub, Treasure Island Media, and TROUBLEfilms. I follow the Salish method of "storying up" another's journey—relying on my own and other storytellers' perspectives to convert to narrative a phenomenon's "coming into and going out of being" (Maracle 2007, 63-64). Beginning with the creation of obscenity- and copyright-related laws in England in the eighteenth century, the story of porn and IP continues with the formation of publics and sexual identities around porn, in the twentieth century, and changes to the distribution of pornography brought about by new technologies in the twenty-first century. With relatively recent access to copyright protection, pornographers have resorted to increasingly aggressive and sometimes cruel strategies for protecting their capital investments in the digital media landscape.
However, not all of the porn industry's strategies for survival are straightforwardly hostile or opportunistic. In the second half of this essay, I examine three questionable strategies used by porn producers to stay afloat in the post-industrial economy. These strategies are the disintermediation and re-intermediation of the industry, the leveraging of the Foucauldian "author function" to re-form the relations among producer, product and consumer, and the generation of a new mode of regulation of consumption through the sale of identity to porn viewers. By examining online porn's technologically-mediated negotiation of its producers' and consumers' identities as authors, owners, buyers and social-cultural actors, we can learn more about whether non-mainstream porn represents true resistance to hegemony, or merely a clever marketing ploy by owners of capital, tweaking hegemony back into their favour.
In the early eighteenth century, English writers were recognised for the first time in civil law as owners of copyright at about the same time that they became liable for the morality of their works in criminal law (Saunders 1990, 437). The 1710 Statute of Queen Anne provided limited-term copyright protection to original works of literature, allowing authors to license their works to publishers and prevent unlicensed others from selling copies. In 1727, criminal law recognised the authors of obscenity as a distinct kind of creator. Writers who produced obscenity were not entitled to copyright protection for their works and instead were held criminally liable for endangering the public with their immoral ideas (Saunders 1990, 437). Previously, these kinds of transgressions were dealt with by religious courts as sin. The creation of the crime of "obscene libel" marked a newly crystallising understanding of the production and dissemination of immorality as a crime against the public. Furthermore, profiting from criminal obscenity broke the "clean hands doctrine," a legal principle demanding that those who gain materially from the justice system must not do so in the course of doing something unjust (Alexander 2013, 221). In 1790, the United States passed a copyright law similar to English law (Hill 2004), and obscene works were similarly considered exempt from copyright protection, as criminalised obscene works did not "promote the progress of science and useful arts" (Goussé 2012). Thus, when the originators of ideas were understood as owners of property in the Global North, their primary relationship in civil law was to their product, while in criminal law they were organised in relation to the public. These two relationships are malleable compositions of the pornographer as historical and cultural figure, and, as we see below, some contemporary pornographers play around with them to maximise profits.
As a culture industry that was exempt for centuries from the rights of private ownership, pornography belongs to a history of copying that involves the use of easily copied works to create consuming publics. In the early twentieth century in the United States, adult cinemas sometimes took advantage of weak or absent copyright protections to screen cheap, unlicensed, or bootlegged copies of pornographic works (Thompson 2007, 55). While the cinemas still often faced the legal consequences of displaying obscenity (see Thompson 2007, especially chapter 5), the initial investment required to show pornographic films was relatively low. For some time throughout the twentieth century, lower or absent licensing fees for public screenings of pornography played a part in facilitating a subculture of public sexuality. At times, as at the stag shows of the early twentieth century, this was a subculture for men identifying as heterosexual (Thompson 2007, 55). But at other times, as in the theatres now removed from Times Square in New York City, porn cinemas have offered a space of acceptance and safety for sexual and other minorities, including immigrants and the working class (Dean 2009, 186), and closeted men who have sex with men (MSM), transgender and cisgender women sex workers, male hustlers, and others who have been excluded from hetero- and homonormative communities (e.g., on MSM's use of these spaces, see Capino 2005, especially 58-63). By the 1970s, cinemas specialising in "hardcore" were growing healthily (Slayden 2010, 60-61). But in the twenty-first century, these theatres are quickly becoming a thing of the past, made "superfluous" by legal developments that make porn more expensive to copy, and technological developments that bring pornography to the consumer's private home (Dean 2009, 186). As discussed in this essay's second section, porn's capacity to generate publics is a function that contemporary internet pornographers have tried, with varying success, to reclaim.
As technological developments were making pornography a digital product delivered to consumers' homes, some efforts were made in the US to standardise copyright law across non-obscene and obscene categories, as well as to standardise categories of obscenity and acceptable perversion (Saunders 1990, 411). In 1979, pornography became officially copyrightable through the landmark US Court of Appeals decisions in Mitchell Brothers Film Group v. Cinema Adult Theater. The Fifth Circuit court decided that since there was no specific exemption for obscenity in the 1909 Copyright Act, and in fact Congress purposefully left content out of the law, a work's obscene content could not be used as a defense for copyright infringement (Bartow 2009, 35; McDavid 2009, 561). Furthermore, the court argued, protection of pornographers' IP furthered the aims of the first amendment by protecting their right to exposition of protected speech (Bartow 2009, 35), and would be more easily implemented as federal copyright law, since the definition of obscenity would vary from district to district, while a federal law on IP needed to be consistent across regions (McDavid 2009, 561). While porn's copyrightable status has been unsuccessfully disputed even as late as 2012 (Goussé 2012; Raustiala and Sprigman 2010), indicating that the relation of producer to product has yet to be wholly naturalised in culture, the Mitchell Brothers case was the moment when pornography officially became intellectual property in the US.
The development and increasing affordability of technologies like the VCR and cable television in the 1980s and 1990s moved porn viewing out of public space and into private homes, marking a dramatic change in the relation of porn to the public, just as these landmark rulings rewrote the relationship of pornographer to IP (Slayden 2010, 60-61). One of the earliest copyright disputes related to online distribution was Playboy v. Frena, in 1993, in which Playboy Enterprises, Inc. sued webmaster George Frena over the inclusion of 170 of Playboy's images in a collection of files available to Frena's public subscribers for download (Jones 1996, 107-08). Frena argued that his subscribers had uploaded the images without his knowledge, but the court held him responsible anyway, confirming the internet as "public and reaffirming pornography as copyrightable work in the process" (Jones 1996, 107-08). Thus, pornography's movement into the digital era was one of migration towards privatisation: both as a product now consumed privately at home and as a form of property no longer in the creative commons. But as the Web develops, IP issues for pornography producers grow. And the ease of copying, coupled with new and more efficient systems of distribution, has brought the twenty-first century pornography industry to a crisis (Raustiala and Sprigman 2010).
Major porn studios were unprepared to adapt to the new technologies and communities of distribution created through the advent of file-sharing websites and, eventually, of YouTube-style streaming video websites (Slayden 2010, 65-66). The new dominant system of online media distribution was an economy of gifting, personalising, and remixing content that gathered users together and suggested in form and in practice that they had a competing proprietary right to the stuff of culture. This is not to say that use rights are uncontested (as the "copyfight" itself shows), or that websites marketing "free" distribution do so with only altruistic, and never commercial, interests in mind. Rather, this is exemplary of a shift in terms of what could be viably commoditised in user-distributor-producer networks: where YouTube succeeds is in marketising hosting of and access to content— distribution—while offering the content itself as "free." Over two months in 2006, just a year after YouTube's launch, three copycat "porntube" websites were launched (Wallace 2011, 2). DVD sales dropped by eleven percent (Slayden 2010, 66) and some companies reported up to eighty percent revenue loss. Steve Hirsch, Vivid's "porn king" (a large mainstream porn studio that employs well-known stars and cultivates a "high class" aesthetic), projected a fifty percent decline (Wallace 2011, 2).
Since large porn producers could not adapt to an economy in which distribution, and not their products themselves, was commoditised, new business ventures emerged to help porn studios enforce their intellectual property rights. While similar businesses exist in all culture industries and their legitimacy has been contested, "copyright trolls" (a pejorative term used to refer to for-profit copyright litigation businesses [Electronic Frontier Foundation n.d.a.]) have had the opportunity to be especially aggressive in their pursuit of people illegally downloading porn. Adult Copyright Company, billing itself as "hardcore protection for hardcore content" (2010) filed a record 16,700 individual copyright infringement lawsuits in just two weeks in 2010, while Ars Technica columnist Nate Anderson notes that "in contrast, it took the RIAA five years to go after 18,000 individuals" (2010). Filed against "John Does", the unknown downloaders of pirated porn, the suits rely on threats of maximum penalties and, notably, "NAMING YOU INDIVIDUALLY IN A LAWSUIT" (formatting in original) to convince downloaders to settle online using their credit cards (Anderson 2010). When gay porn producer Liberty Media took up litigation of downloaders in 2011, the tactic of shaming porn "pirates" showed itself to be a powerful and ugly weapon against copying. As Mike Masnick writes, "defendants who either are in the closet or are not gay and fear being sued for downloading gay porn are more likely to just pay up to avoid the embarrassment" (2011). The court rejected defendants argument that Liberty Media sought defendants' identities in order to coerce pretrial settlements, defining outing as "mere embarrassment," but Masnick argues that "folks—especially younger people—who have had such info exposed against their will to family and friends who might not be accepting" have not been merely embarrassed, but concretely harmed by homophobia, and in some cases have committed suicide (2011).
Copyright trolls' activities were curtailed to some extent in 2013, suggesting that their business model may not be sustainable in the long run. Blogger Tony Lee summarises how a California judge, who alluded to the popular science fiction program Star Trek repeatedly throughout his judgement, levelled "hull-breaching sanctions" against a group of copyright trolls attempting to use the court to discover the identities of illegal porn downloaders (2013). Citing Star Trek character Mr. Spock's adage that "the needs of the many outweigh the needs of the few," the court concluded that the content owners' request for information could not be justified.
Not all pornographers, however, suffered major losses or turned to copyright trolling to shore up a crumbling business model. Kal Raustiala and Chris Sprigman write that some porn companies work with tube sites, "tak[ing] advantage of falling production and distribution costs to produce a huge amount of pornographic content catering to every imaginable sexual taste" (2010). The Free Speech Coalition, an organisation representing major and independent porn studios' political interests in the US, now offers a service that acts as a liaison between porn studios and tube sites, facilitating legitimate advertising on the tube sites while making the removal of pirated content from the internet faster and easier (Free Speech Coalition 2012). Pornhub and Treasure Island Media, two of the three companies discussed in detail below, both participate in the Free Speech Coalition program, demonstrating their capacity to adapt to the changing distributive infrastructure of the internet.
That the internet changed how we make and view porn is unquestionable. The three online porn businesses selected for examination in this essay have in common their employment of survival strategies made possible by the shift to a post-industrial, digital economy and by IP's and obscenity's shared history of regulating and defining one another. The technological and organisational adaptations made by thriving online porn businesses are characteristic of netporn, the new form pornography has taken to accommodate the culture and economy of the internet. Blurring the lines between producer and consumer, professional and amateur, product and access, these three sites are exemplary of the economic and aesthetic changes to pornography that make netporn something more than just "porn on the net" (Paasonen 2010, 1298). According to Susanna Paasonen:
Netporn entails the blurred boundaries of porn producers and consumers, the proliferation of independent and alternative pornographies, as well as the expansion of technological possibilities brought forth by digital tools, platforms and networked communications. Ultimately, what is at stake is no less than a redefinition of pornography as a cultural object in terms of esthetics, politics, media economy, technology and desire. (2010, 1298)
What distinguishes netporn from analog porn is the relationship generated among producer, distributor, and consumer when porn is disseminated on Web 2.0 platforms. It is defined by multidirectional distribution, flexibility, and specificity to consumer interest. As we see in more detail below, this decentralisation is an important tactic for economic survival under late capitalism. Paasonen tempers her optimistic reading of netporn's potential with the caveat that a utopian view of the internet, whether of its early years or of the new forms of communication enabled by Web 2.0 technologies, is likely to "create a false sense of clarity for things that are blurry indeed" (2010, 1309). The internet is not and has never been an anarchist or anti-capitalist paradise, and it would be foolish to presume that the anti-establishment form and culture of netporn developed for altruistic, and not money-making, reasons.
Below, I discuss the business models of three netporn sites. The first is Pornhub, a YouTube-style website that makes clips of pornographic videos available to registered and non-registered website users for free. Pornhub was initially started as a standalone site, but as its revenues grew, its owners bought other tube sites. Now Pornhub exists in a network with similar sites such as YouPorn, Extremetube, and SpankWire. Clips are uploaded by registered users of the site, who may be individual consumers or, increasingly, accounts belonging to production studios. Pornhub exemplifies the reorganisation of the porn industry around distribution.
In the gay porn scene, Treasure Island Media (TIM) is an example of a major porn studio that has successfully adapted to the digital economy. Founded by queer filmmaker Paul Morris in 1997, and as stated on a now-defunct Facebook page, TIM is a "barebacking" porn production company that advertises itself as "more a cult than porn studio." It is billed as "the world's most watched, most-imitated and fastest growing producer of all-male entertainment," but it has been connected to controversy since its beginning. Barebacking is sex without a condom, but unlike pre-HIV condomless sex, it is a practice that specifically involves awareness of HIV (Dean 2009, 1-2). As we see below, Morris leverages consumer participation in barebacking culture, consumers' queer, masculine identities, and his own "renegade" persona to keep his business economically viable.
Finally, I examine the independent queer and feminist porn business, TROUBLEfilms. The TROUBLEfilms network was founded in 2002 with then-19-year-old Courtney Trouble's launch of Nofauxxx.com, an independent porn video website (Trouble 2014a). By 2011, Trouble had incorporated Nofauxxx.com, retitled Indiepornrevolution.com, into a network of likeminded pornographic websites, including Courtneytrouble.com and Queerporn.tv (2010). Queer Porn Tube, originally a sub-page on Queerporn.tv, became its own domain (Queerporntube.com) in 2012. While Indiepornrevolution.com hosts mostly paid content and Queerporntube.com hosts mostly free content, the "community-based" Queerporn.tv aims to make use of "everything useful the internet has to offer," including an open forum for user-uploaded porn, professionally-produced hardcore porn and livestreaming discussion, news, and education about sexuality and pornography (TROUBLEfilms 2013). TROUBLEfilms stands out as a company that stays afloat by influencing porn users' consumptive behaviour.
The fundamental distinction of netporn from traditional porn is its reorganisation of processes of production and distribution, a change that necessarily includes the reorganisation of form and content as well. Where copyright crackdowns may be the culture industry's strategy for clinging to the profit-generating weapons of the analog media era, processes of disintermediation and re-intermediation are at work in newer online business models. Disintermediation is "essentially [the] removal of routinized business practices involving middlepersons," which in the case of culture industries online has sometimes been accompanied by transformation of what is bought and sold from ownership of a physical object to access to a digital copy (Jones 2002, 222-223). "In its extreme form," writes Jones, "disintermediation would essentially result in de-industrialization, in individual control of all facets of the creative process" (2002, 223).
And sometimes, the culture of the internet does seem to promise a utopia of extreme decentralisation and individual control over production. But, as Jones explains, de-industrialisation is not the actual or likely result of digital disintermediation. What has happened instead is "re-intermediation," or a process by which the industry is re-formed, with different parties holding the monopoly on access and different parts of the production-distribution-consumption relationship working to generate profits (Jones 2002, 223). Or in other words, the "function" of the intermediary—the necessary, powerful process of distribution—"remains even though the sources and/or the nature of the intermediation are changing" (Hawkins et al. 1999, 389). Dean argues that digitisation has "normalised" porn, even as it became more profitable and more representative of niche fetishes and perversions (2009, 103). Blaise Cronin and Elisabeth Davenport argue the same point, writing that porn has used e-commerce to market itself as just another entertainment product, and the benefit of doing so is that the internet offers a networked distribution infrastructure through which products can easily be "repurposed, cross-sold and up-sold, and differentially priced for a variety of local and international markets" (2001, 39). Pornhub stands out as an exemplar of how these changes have taken place.
Disintermediation is shown in how Pornhub changes the porn-buying transaction. Unlike the pornographers of the twentieth century, who had direct creative control over the content of porn itself, but relied on the infrastructure of the mainstream culture industry's distribution networks to reach customers, the controllers of netporn are the distributors. Their relationship to the consumer is direct, and the content of the porn they distribute is incidental to their business plan. According to New York Magazine writer Benjamin Wallace, Pornhub's creators, Canadians Ouissam Youssef, Stephane Manos, and Matt Keezer, and the holdings company Manwin (its owner at the time of writing, which is headed by Feras Antoon), are web experts—they are skilled at web design, content distribution, and search engine optimisation, but they have never actually made porn (2011, 2). Videos for pay sites like Brazzers, which was owned by Youssef, Manos, and Keezer, and purchased by Manwin along with Pornhub, are produced by small studios and independent producers then sold to the branded websites (Wallace 2011, 2). But, as Jones predicts, this shift has not resulted in deindustrialisation, but rather in a reorganisation of the industry.
Pay sites are increasingly signing up for Pornhub accounts and submitting trailers and teaser videos (Wallace 2011, 6). Pornhub also displays a great many advertisements, often for sites owned by the same holdings company, Manwin (cf. the business model described in Wallace 2011, 1-6). Each visit prompts a "pop-under" (a new browser window that opens below the one showing Pornhub content) for live video chat websites, such as Livejasmin and Floozy City, emphasising the importance of individualised, live performances, which are much more difficult to save and copy (Raustiala and Sprigman 2010; Wallace 2011, 3). Pornhub analyses everything from the optimum length of videos to the factors that influence a user to Google a porn brand's name, in order to determine how best to convert free users to paying customers (Wallace 2011, 6). The pay sites that use Pornhub to advertise are not competitors, so they do not face risk to their investment by being curated among such a diverse selection of pornographic videos. Instead, risk is pushed away from the centre of the industry to its satellite sites: the actual producers of pornography who must figure out what content will be received as fresh and stimulating, perform the necessary physical labour, and find a branded distribution site to sell their videos to.
Likewise, TIM and TROUBLEfilms show the effects of industry re-intermediation in their production and distribution models. Gay barebacking porn followed straight amateur and "gonzo" porn in using minimal sets and plots, restricting the porn aesthetic to scenes of hardcore sex (Thomas 2000, 76). In late 2013, TIM launched its own tube website, Toxxxic Tube, using the same layout and business model as Pornhub and directing users to TIM pay sites, while managing to host legally-questionable content without liability (Zach 2014b). TIM also uses an account on Pornhub Gay to advertise (Timrev 2014), and it purchases banner and flash ads on other tube sites. Users are directed to TIM's pay sites through advertising links and through repetition of TIM's brand name, which encourages users to Google the site. TIM sells porn DVDs from its main site, and the company has sold physical videos and DVDs to consumers since its inception, but its web presence also includes the offer of streaming videos, which are longer and feature more variety of content than the shorter clips available on Pornhub Gay. TIM's streaming video sites are divided into three separate domains, which offer viewers scenes of three kinds of sexual practice: TIMjack.com, TIMsuck.com, and TIMfuck.com. Three free clips of thirty to ninety seconds are available on each of these sites, but if the consumer wants to see the entire selection of clips and choose which ones to watch, he must pay for membership to the site. Shifting commoditisation from purchase of a physical product to access to content, TIM shows that a major porn studio can thrive on the internet if its business model adapts rather than attempts to use copyright law to force consumers to pay when they don't want to.
Feminist and queer porn is largely produced by independent filmmakers rather than large studios. In an interview with Cosmopolitan magazine's Anna Breslaw, Tristan Taormino, one of the feminist porn genre's founders, condemns tube sites for "blatant copyright infringement" that is "basically destroying the old economic model of the adult industry" (Breslaw 2013). She notes, however, that the crisis in the professional porn industry has "leveled the playing field to some extent and made it possible for people to control the means of porn production, which is a good thing for feminists" (Breslaw 2013). Like Pornhub, TROUBLEfilms mixes free and paid content under one holdings company, acting as an umbrella label for all of Courtney Trouble's various projects. TROUBLEfilms does produce its own content, but also distributes videos produced by other queer and independent porn studios, such as FTM Fucker (TROUBLEfilms2014b). While Taormino is correct that the decentralisation of the porn industry has made space for more production from the margins, it appears that TROUBLEfilms' strategy of copying the Pornhub model to form its own network of distribution is what makes the business profitable.
While these netporn sites may be successful businesses, they do not always represent themselves to consumers as such. Instead, they often present themselves as revolutionaries or renegades. This strategy backs up the impression that netporn is indeed "free," and it is made possible, in part, by the historical figure of the "author/owner" produced by copyright and obscenity law. Foucault describes "the coming into being of the notion of 'author'" as "the privileged moment of individualization in the history of ideas, knowledge, literature, philosophy and the sciences" (1998, 365). He argues that while discourses are traditionally "objects of appropriation"—things that real people attempt to own and control—"discourses really began to have authors...to the extent that authors became subject to punishment, that is, to the extent that discourses could be transgressive" (1998, 369). In addition to being individualised, the author function is discursively constructed, and different author figures are molded to act as property-creator in different contexts. And yet there are constants among configurations of authors in the European tradition: the privileging of authenticity, the imposition of unity on necessarily varying and contradictory bodies of work, and the view of the author as the source of ideas, bearing moral and legal responsibility for their dissemination (Foucault 1998, 370-71).
Obscenity's legal history makes the author figure possible, while copyright's legal history helps to define the author as a property owner. Mark Rose suggests that copyright's metaphors, which he calls the "paternity" and "real estate" metaphors, "often operate cumulatively, the one reinforcing the claims of the other" (2002, 3). The first of these metaphors is a Romantic understanding of the book as a natural extension of the author's self—his child, imbued with all the mystique the notion of creative genius can offer (Rose 2002, 4-6). The second, a product of the individualism of Lockean liberalism, stories up the creative product as a field, which the author has plowed and from which he is entitled to reap the economic benefits (2002, 6-8). "The two tropes complement each other," writes Rose:
The paternity metaphor underwrites the system as a whole, while the real estate metaphor objectifies and reifies the author's production and allows it to be treated as a commodity. Each trope in its own way contributes to the tendency to think of copyrights as permanent and absolute property rights. (2002, 9)
But as Rose reminds us, metaphors can be repurposed with new meanings. Parentage and custody of children can be disputed, based on the interests of the child and its future, and the notion of real estate can be invoked, as James Boyle does, to assert the naturalness of use rights, or of the commons that existed before enclosure (Rose 2002, 12-13).
Pornhub, TroubleFILMS and TIM leverage author personae that draw on the paternity and real estate conceptualisations of IP as a part of doing business. Youssef, Manos, and Keezer were known in the porn industry as the owners of Brazzers, a pay site that hosts short videos of hardcore sex. Before it was revealed that they also owned Pornhub, the group maintained their cover by participating in the vitriolic condemnation of pirated content distributors voiced by pornography producers. "Content thieves 'will not steal it and get away with it,'" they wrote on one online message board. "Their days are counted!" (Wallace 2011, 2). When they were discovered as the "thieves" behind Pornhub, Youssef, Manos, and Keezer took heat from other porn producers for their deception and for their actions as porn outlaws, a persona attached to Pornhub that they, in their roles as beleaguered pay site owners, had helped to create. With the change in ownership and rebranding of "tube" sites as a potential expansion of the legitimate owner's product-to-market function, Manwin has also rebranded itself with an increasingly "acceptable" corporate identity by sponsoring safe sex campaigns and other forms of socially responsible corporate behaviour (Wallace 2011, 2). The forceful condemnation of "theives" reinforces porn owners' moral right to their product while the legitimate owner figure remains positioned to collect its revenues.
Trouble, too, while making no attempt at deception, emphasises the character of queer porn as an authentic extension of queer life as a part of her sales strategy:
People are getting bored of the cookie-cutter, formulaic pornography you can find for free on the internet—it's practically all the same, and what it lacks, queer porn has in abundance. More and more porn consumers are looking for chemistry-driven, creative, explicit, and authentic content, and the more queer porn is released into the world, the more popular it will become. (gabrielle 2010)
In both cases, an "outlaw" author figure exercising a kind of inherent criminality (or revolution)is reminiscent of the distributor of obscenity whose figure helped to constitute the author as owner. Yet the function of this author figure is not to deny property rights, but rather to support netporn owners in their accumulation of capital.
Another example of an "outlaw" author figure being deployed to obscure and support the pornographer's role as owner is in the persona Paul Morris performs as figurehead of TIM. TIM appears to offer an alternative to passionless porn: raw, real sex, produced as an extension of Morris' own ideology. In a 2014 interview with Vice magazine, Morris states:
Years ago I stated that all gay men are HIV-positive. That is, every gay man alive today is defined as much by the viral load narrative as by any external homophobia. If you wonder at the meaning of a jar filled with poz loads being poured up the ass of a happy, intelligent, and more-than-willing young gay man, the primary meaning is that there is no reason or excuse for continuing to live in fear of a virus. (Morris qtd. in McCasker 2014)
For Morris, barebacking porn is a discursive space in which gay men's sexuality—even under the weight of risks and stigmas related to HIV and homophobia—is to be celebrated.
TIM's "Pirate Amnesty" projects illustrate how this negotiation of author persona helps the company stay afloat. TIM has hosted at least two iterations of the "Pirate Amnesty" project. First, in 2010, TIM offered What I Can't See 2 as a free preview to consumers who had downloaded a pirated version of the film. The video, which featured blindfolded bottoms having bareback anal sex with multiple partners, was the most-pirated gay porn video in the world, receiving "3.5 million illicit online views" (Morris 2011). "While other porn companies are battling pirate downloads, I'm a fucking renegade," Morris writes on a page announcing a special discount price for downloaded and DVD copies of the video; "I want to get my porn to as many men as possible" (Morris 2011). In another announcement, a TIM blogger wrote:
Other porn studios may be trying to sue the hell out of everyone–but here at T.I.M., we're determined not only to embrace, but to outright ASSFUCK the future! Instead of trying to destroy new systems and communities of distribution, we want to work with them. (Treasure Island Media 2010)
Accompanying these announcements is an image of a pirate drawn by artist Liam Cole (see Figure 1). Gazing into the distance, with an erection bulging in his pants, the pirate's tattered flag and peg leg are lodged deep in the rectum of a serene, bound bottom (Morris 2011). With the announcement and the image, Morris ties "raw sex" and his own persona as hyper-masculine creative genius to an apparently forward-thinking politics and business strategy: neither surrendering his vision to the ravages of digital pirates nor bringing his fan base anything but pleasure, Morris deftly employs a strategy for recovering his losses that does not interfere with the impression that TIM exists to serve the gay male community, and only incidentally makes money off it.
In a second version of the "Pirate Amnesty" campaign, the figure embodied by the pirate has shifted. TIM was fined in 2010 and 2014 for failing to comply with California occupational health and safety legislation (Zach 2014). The 2014 "Pirate Amnesty" page has a trailer for the offending video, The 1000 Load Fuck, juxtaposed against a cartoon image of two sad, bored men in hazmat suits. Preparing to have anal intercourse, one man handles his condom-covered penis with forceps, and a sign behind them reads "OHSA [Occupational Health and Safety Act] Approved," implying that condom use in pornography represents a fear of men's bodies and sexualities (Morris 2014). The page concludes with a letter from Paul Morris to consumers:
...Over the last year, TIM has been the only studio in the USA to proudly stand up and fight against government and private organizations that would oversee and dictate our sexual expression, our private lives...
These people, vowing to control our private lives, believe they can tell us how to have sex, how to behave, how to live. They would have us believe they know what's best for us---better than we do ourselves.
First they will try to control our sexual media, and tell us whether or not we can honestly express ourselves in front of the camera.
The step after that---and it's not a big step---would be to directly control our behavior.
In purchasing this scene, you're putting your support square behind us in our fight against the sexual tyranny of condom nazis and sexual prudes, of know-nothing academics who've yet to climb down from their ivory tower to even try to understand who we are and how we live.
Live free, fuck free.
Paul Morris (2014)
Once again, Morris asserts his entitlements as a porn producer, but uses his "pirate" image to hide his role as an owner. The consumers who pirate TIM videos and Paul Morris, himself now seeking amnesty, form a "we" that we are told also includes the performers required to work without condoms. Masculinity and queerness, representation and sexual practice, private life and worksite, are blurred in Morris' advocacy to resist both occupational health and safety regulation on porn sets and the stigmatisation of HIV (Morris qtd. in McCasker 2014). The abuse of workers, unfettered by labour legislation or other regulation, is rewritten as "freedom" in Morris' narrative, while the fines imposed on the company are presented as the work of uptight, intellectual fascists. Morris' "outlaw" persona persuades consumers that they are supporting something bigger—something ideological and not purely capitalistic—than the porn industry: a queer way of life. And of course, following his earlier model of using "Pirate Amnesty" to recoup lost revenue, Morris encourages consumers to show their support with their wallets.
This is not to say that Morris is insincere in his ideological commitment to queerness or to the use of barebacking porn to destigmatise HIV. The construction of the author figure doesn't take place when Morris does or does not perform an authentic self. Rather, it is in the organisation of the author as an economic entity, with the cultural product tied to author as both extension of self and commodity for sale, that brings the author function into play as a business strategy.
Recreating porn consumers as communities invested in a higher purpose is a way of stimulating consumption and creating a new mode of regulation in which practices of consumption are more or less consistent with the productive and distributive capacities of owners of capital. As Rob Latham describes, in Regulation theory, as the conditions of production change, so too must the conditions of consumption. If not, supply will find itself without a demand to meet, causing an economic crisis (2007, 10). The dominant economic system cannot maintain perfect consistency between production and consumption, but instead works to generate hegemonic norms—everyday social practices and expectations—that stimulate the kinds of consumption required to keep production in business. This system of norms is called a "mode of regulation" (Latham 2007, 10-11).
Latham argues that in the post-industrial economic system, the technological conditions of production and consumption and the social norms helping to maintain consistency between the two have fundamentally shifted from the same processes under Fordism (2007, 17). For Latham, a part of what is distributed over digital networks is identity. Latham writes of youth, and the identity at stake in the distribution of porn is sexuality, but we can follow a model similar to Latham's:
"[Y]outh," in the Fordist industrial-cultural regime, ceased to be a quality inextricably attached to quantifiably aged bodies and instead became a set of values desirable both as the means of production and the end of consumption. ...The apparent result was an emphatic naturalization of youth as a social category, since the sheer visibility of young people—literally adolescent bodies—seemed legitimately to represent the social subject industrial culture had valorized. (2007, 15)
But, continues Latham, there was more going on than just a literal growth of the number of young people buying things in the post-war Global North. "[T]he homogeneity and mutuality of interests that seemed to link young people as 'youth,'" he writes, "was an entirely artificial construction" (2007, 15). The coherence of the social category was maintained, tenuously, through ritualised mass consumption of things designed to make one "young," with youthfulness defined as "innocence, openness to possibility, [and] physical dexterity," qualities that also made one a good worker (2007, 14-16). Technological change increasingly made the consumption of identity a matter of digital consumption of cultural works, and in the post-industrial economy, norms of consumption have come to emphasise flexibility and individuality. No longer are goods produced for one mass market—the post-industrial economic system attempts to stimulate consumption by an infinite number of ever-changing niche markets, which are defined by, and expect products to cater to, their individual needs (Latham 2007, 16-18).
A similar description of the economic workings of netporn is available. Following the proliferation and increased visibility of discourse and performance related to sexuality (Attwood 2006, 80-81; Foucault 1990), postwar sexual identities and experiences became goods on the market, and pornography helped to form groups of people as consumer demographics based on their sexual desires. Netporn owners' negotiations of their personae help to prop up this sense of consumers as community. Meanwhile, consumers are encouraged to both consume and produce porn as an expression of their sexual identities and ideologies, and netporn businesses use free tube sites to distribute content that caters to an increasingly specific and always-in-flux array of desires and fetishes, all linking back to their own pay sites.
Pornhub has made intermittent efforts to acknowledge a female audience, announcing "it makes your dick bigger and your pussy wet" in a tagline on the 2012 version of the site, and asking "when's the last time you jacked off or jilled off to one of our other fine tube sites?" on a 2014 version of the site's page advising the consumer that Pornhub is unavailable due to maintenance operations (Pornhub 2014a). But content "For Women" and gay porn are sectioned off as special categories on the site, leaving the unqualified categories, such as "Big Tits," to presume a heterosexual male audience (Pornhub 2014b). As of April 2014, Pornhub's front page had eschewed its former tagline in favour of content promoting user interaction: invitations to send birthday photos for the site's anniversary, a poll on which "Lesbian Starlet" is "hottest," and a series of six thumbnails telling users entering the site which videos are currently being viewed by other users. This shift reflects the general trajectory of distributive and consumptive (as well as technological and cultural) changes, not only to what porn is and how it is used, but to how porn viewers are expected to relate to the product. Moving from a self-concept as something that affects the user (and in a particularly unrealistic way, since penises can become erect, but do not actually get "bigger") to a self-concept as something created, managed, and curated by a collective of individual users according to their specific needs, Pornhub is exemplary of internet business models that cater to identity- and demand-based niches, and that sell, in part, the user's own sense of control.
Like Pornhub's pop-under advertiser Livejasmin, TIM capitalises on direct, live performances via webcam, which save money by removing intermediaries and all but eliminate the risk of copying. On April 16th, 2010, TIM launched "Fuck Roulette," a flash application that connects site users to other users via webcam and a play on the social video chat site Chat Roulette(Stanford 2010). Clicking the "next buddy" button in the app connects the user to a different webcam, selected at random by the application (this is the "roulette" function of the app). Users are encouraged to use the app while watching streaming videos on the pay site. Fuck Roulette provides the interactive, "community" experience now common to porn distribution hubs, while offering a free product that does not compete with paid content, aesthetically or in terms of production quality. It also promotes purchase of the paid videos without offering additional teaser content that could be copied and uploaded to a site like Pornhub Gay, and now that the application interface has been developed, an unlimited number of performances can take place without costing TIM anything but bandwidth and maintenance. In the cases of both TIM and Pornhub, we can see the workings of Latham's model for creating an identity based on the characteristics or behaviours that make one a desirable worker—curation and distribution, for Pornhub, and production and interaction, for TIM—and selling it to audiences as a commodity.
TROUBLEfilms stands out among the websites studied here as the most dependent for its survival on its ability to stimulate identity-based consumption. While TIM also sells an idea of queerness, TIM's sites are still dedicated to sexual practices that exist outside of the gay male community: suck, fuck, and jack. What TROUBLEfilms sells is queerness itself. The nofauxxx.com mission statement identifies "Safer Sex and Consent" and "All-Inclusive Casting" as organising principles for the company (TROUBLEfilms 2014d). The TROUBLEfilms business model relies on the notion of community to earn its revenues. "The advertisers on this site help keep us running, and are hand-picked and approved by our administrators. Show them some love!" reads a notice above a banner ad on each page of Queer Porn Tube. The advertisers are, in Pornhub style, mostly other sites in the TROUBLEfilms network, but they also include websites belonging to individual performers appearing in Trouble's films, and other businesses belonging to queer porn community members who are active contributors to queerporn.tv: the producers and consumers are also the advertisers, and everyone is motivated to make sure the sharing that takes places is conducive to making a profit.
"Queer is as you define it," reads one of the TROUBLEfilms network's many manifestos, mission statements and "about" pages (TROUBLEfilms 2014a), but in fact TROUBLEfilms seems designed more to queer its audiences than to be defined, even queerly, in return. Queerporntube.com queers sex and sexual representation by eschewing the categories characteristic of other tube sites, and instead offering "enre and gender-less navigation" designed to "encourag[e] the audience to think outside their own boxes and find something new and exciting to get off to" (Trouble 2014a). The "Collections" page queers the notion of categories by limiting the niches videos are divided into. It highlights desire for trans bodies and non-normative sex acts by offering categories for "Trans," "GenderQueer," "Fisting," and "Strap-ons," but when it does offer collections similar to the categories seen on Pornhub (e.g., "Oral," "Anal," and "Hardcore"), it does so without reference to the gender of the performers (TROUBLEfilms 2014c). At Queerporn.tv, we find links to queer community resources and a glossary of terms, in addition to numerous free sex-ed videos, purposefully blurring the boundary between pornography and pedagogy—in essence, teaching consumers as they browse the site how to be queer. Instrumental to the way of being queer sold by TroubleFILMS, unsurprisingly, are the acts of producing and consuming queer porn.
What can we learn from the stories of how porn became property, only to face the challenge to property rights posed by the "pirate" distribution culture of the internet, and how netporn adapted to survive? Pornography and intellectual property have a shared history, in which what was constructed as commodity, and thus protected as property by law, and what was constructed as obscenity, and therefore was unworthy of legal protection, were mutually constitutive. Netporn's strategies for survival are pulled from this history, as the porn websites that thrive on the internet commoditise distribution while letting others hold responsibility for pornographic production, manage their figureheads' personae to protect their capital investments without letting on that their content is anything other than a natural extension of themselves, and use sexual desire and identity to create publics of consumption and reproduction for their products.
Understanding the historical and economic processes behind netporn can help us to evaluate claims, such as Morris' and Trouble's, that alternative pornographies offer resistance to hegemony. In reconfiguring pornography as netporn, Pornhub helped to make space among wealthy major porn studios for independent, feminist and queer filmmakers. TIM demands that sexual desire be fulfilled in its entirety and unapologetically, not just regardless of risk, but actually embracing the risks associated with raw sex. TROUBLEfilms has an explicitly feminist and queer agenda, and produces representations of sexual behaviour and distributive organisations of pornography that help to deconstruct and redefine normative notions of sexuality, sex, and queerness. All three companies drive technological progress forward, testing the possibilities of new technologies for pornography distribution and seeking innovations that could further their businesses. On the surface, these businesses appear progressive, but in addition to showing us new ideas of sex, what netporn can show us is a new set of labour practices, taking place on the fringes of the culture industries—the practices of the satellite worksites to which Garnham referred.
In amateur mainstream porn, the producer of a tape is paid $150 by the company they sell it to, and actors may receive between fifty dollars and $150 for their labour (Abbott 2000, 51). This is the business model used by Brazzers and described above. "Pro-amateur" and professional porn performers earn more, with professional female actors earning $300-$1000 per scene, but work is not necessarily regular (Abbott 2000, 50). Unlike actors in mainstream porn (Abbott 2000), feminist porn performers interviewed by Jill A. Bakehorn did not cite money as a reason for entering pornography, and instead point to reasons of ideology, activism, and opportunity—more than half were professional sex educators (2000, 94-95). The reason for this is that feminist porn pays even more poorly than mainstream porn. As Trouble writes in her advice for aspiring indie porn stars:
[F]or a majority of the folks making or performing in indie porn, this is a hobby. ...I feel like *the* most important thing to preface in an indie porn How To is to say, you will NOT make a living off of this. … it can be a great treat to do in between more mainstream style shoots or other kinds of sex work, but there's just not yet enough work for everyone to be doing monthly shoots. (Trouble 2013b)
Yet despite this warning, Trouble also advises aspiring queer porn stars to upload unpaid content to Queerporntube.com (Trouble 2013b). TROUBLEfilms also makes use of unpaid interns for content-creation and advertising (Trouble 2012; Trouble 2013b). And while gay porn generates ten to twenty-five percent of the porn industry's $8-10 billion in annual revenues (Thomas 2000, 67), court documents for the 2010-2014 case in which TIM was fined for an alleged failure to comply with occupational health and safety regulations reveal that workers were paid as little as $275 to perform in The 1000 Load Fuck, and the highest paid worker (the lead who took "1000 loads" of semen in his mouth and ass, per the video's concept) earned only $850, or, as blogger Zach points out, less than one dollar per load (Zach 2014a). Porn may be lucrative for some of its distributors, but it is not a well-paying job for many performers.
TIM's example shows us just how unfair the labour practices behind an apparently progressive netporn business can be. The 2011 "Amnesty" sale may have brought Morris' porn to more men who would not otherwise have seen it; it likely converted some non-paying "pirates" to paying customers for Morris as well. But it is not typical for independent contractors such as porn actors to receive benefits such as health insurance, and while Morris claims that "your greenbacks go straight to the men in my vids," porn studios do not typically pay residuals to actors. Refocussing the conversation on the workers involved, queer sex work blogger Matthew writes:
[Barebacking is] not accidental or spontaneous, it's a money-making film studio telling you that they do not care about the safety of their workers. ...Turning unsafe sex into a commodity—a financially lucrative one, despite Treasure Island's rather unbelievable self-positioning as an outsider company—is dangerous to performers and also to viewers. (2011)
Likewise, queer porn producer, performer, and remix artist BJ Pink says that the representation of raw, risky sex as the ultimate in queerness may be seductive, but that doesn't change the reality it refers to: "Is it hot to see sexy gay men killing themselves and breaking taboos like having sex without condoms, YES for sure it is. However is it moral, ethical, fair, realistic or responsible the answer would definitely be a big NO" (personal correspondence, July 30, 2012). TIM is a studio where sex working men with HIV or Hepatitis C and men who use drugs can get work without facing discrimination, and porn performers need their incomes as much as anyone. It is also possible that actors who do not have HIV are using Pre-Exposure Prophylaxis, a cocktail of medications that can be taken to prevent HIV transmission, or that what we see in TIM's videos and hear about in their marketing is in some other way only a representation of risk—the risk itself may be but an illusion. But—if we take the marketed content of TIM's videos at face value, or presume that copycat barebacking studios operating without Morris' commitment to HIV destigmatization have even fewer resources to dedicate to fair working conditions—a lack of concern for the lives of gay men, queers doing precarious work and sex work, and poor and LGBTQ people being underpaid—these working conditions are not counter-hegemonic.
What netporn does offer as potential resistance to hegemony is the opportunity to see the crises and contradictions of capitalism play out, and to see how easily "progress" can be co-opted in service of capital. If as Rose suggests, the metaphors supporting hegemony can be usefully redeployed as resistance, then perhaps what we can gain from studying netporn is a new set of metaphors related to obscenity and intellectual property. The abuses of labour in netporn are found in practices that mould and employ sexuality in service of capital. Maybe it was never sex, but rather service to capital, that was obscene.
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