SANTA MONICA, Calif. — A lawsuit filed this week by an OnlyFans model against against Thothub.com and other companies shines a spotlight on the potential liability of affiliates for advertising on sites accused of piracy.
The complaint was filed Monday by attorneys for OnlyFans model Niece Waidhofer, described in the complaint as the publisher of content consisting of “artistic, non-nude photographs of herself, mostly in lingerie or costume.”
Waidhofer alleges that Thothub’s “primary purpose — its raison d’etre — is to steal this exclusive, behind-the-paywall content from the Licensed Sites and unlawfully distribute it to millions of its associates."
Waidhofer’s lawsuit claims that “Thothub and the Members — with the material support of the other Defendants — caused Waidhofer’s content to be stolen from the Licensed Sites and unlawfully published on Thothub. In addition, Thothub published certain of Waidhofer’s unpublished works that reveal her partially nude body, which Waidhofer never intended to publish.”
But the lawsuit goes beyond accusing Thothub of copyright infringement and seeks to identify the website’s owners in order to collect potential damages. Waidhofer also accuses internet infrastructure service Cloudflare, paysite Bang Bros and cam site Chaturbate of “conspiring” with Thothub in the copyright infringement.
Bang Bros and Chaturbate are named in the complaint due to the alleged display of their affiliate ads on Thothub’s pages.
The claim against those two sites is that, by running affiliate ads, they provide “funding” for Thothub’s alleged criminal enterprise, in violation of the Racketeer Influenced and Corrupt Organization Act (RICO).
A Potential Minefield for Affiliate Liability
According to Waidhofer’s lawyers, Bang Bros and Chaturbate “are two of Thothub’s most prolific paid advertisers.”
“As major players in the online adult content industry, the Advertiser Defendants know, and cannot reasonably avoid knowing, that Thothub is a pirate site,” the complaint continues, also alleging that “they know that Thothub specializes in content stolen from the Licensed Sites, emerging competitors that threaten their business.”
Furthermore, the lawsuit contends that “the Advertiser Defendants’ willful cooperation with Thothub drives sales for their own sites while directly undermining their top competition by causing the leaking of creators’ works. In exchange for the financial support, Thothub does not publish content stolen from the Advertiser Defendants.”
On Monday, Motherboard's Samantha Cole published comments from Chaturbate and Bang Bros reps.
The Chaturbate spokesperson said the ads on Thothub had been placed without Chaturbate’s knowledge “by independent third-party advertisers participating in Chaturbate’s referral marketing program.”
The rep added that since “advertising on websites that use stolen or unlicensed content is against Chaturbate’s marketing program terms," the company “immediately reached out to the responsible advertisers and informed them that Thothub.tv is not an appropriate site for sending traffic to Chaturbate and asked them to immediately remove any of their Chaturbate ads that may be appearing on Thothub.tv.”
The Bang Bros rep told Motherboard that “their media buyers weren’t familiar with Thothub, as their ads are placed using a third-party advertising network.”
“Now that this has been brought to our attention, our marketing department will reach out to the ad network asking this site be put on an exclusion list,” the Bang Bros spokesperson added.
If it moves forward, Waidhofer’s lawsuit could be a potential minefield for affiliate marketing liability by invoking the language of organized crime and RICO to redefine affiliate marketers — often several times removed from the day-to-day ad-placement process by layers of media buyers and ad networks — as “funders” of piracy.
The RICO Approach
Battleship Stance’s Jason Tucker — a veteran industry expert whose copyright management and enforcement clients include many notable players in the adult industry — explained that Waidhofer's "approach to include civil RICO has been theorized for years by studios in the industry."
"It’s possible to accomplish the same result without entering into expensive steps needed to prove RICO," Tucker told XBIZ. "I imagine that if — big 'if' — they prevailed, it would be limited in nature and not extend past the operators."
According to Tucker, if the advertisers have no control over the content on the site, they, and brokers, are considered service providers, according to the Perfect10 v. CCBill precendent.
"This should extend to affiliates as they, even with knowledge, have no control over the content," Tucker said. "From recent cases we have seen that there is a high bar to establish red flag knowledge against a service provider."
For Tucker, this appears to be "a copyright infringement case with other elements, that should land directly on the operator and extend to uploaders, if any exist."
Including sites such as Chaturbate and Bang Bros, Tucker added, "though well-intended, may not garner the result Waidhofer expects."
Thothub Goes Down
According to today’s update on Motherboard, Thothub.tv appears to have been taken down following press coverage of Waidhofer’s complaint.
“The site went down on Wednesday evening, and was replaced by an interactive animation of the solar system and an email address for inquiries,” Motherboard's Samantha Cole reported.
“Thothub clearly saw the writing on the wall and decided it had no choice but to shut down its criminal activity,” Waidhofer’s attorney Brett S. Rosenthal told Motherboard. “But we are just getting started. We will hold Thothub’s members and the companies that enabled its piracy accountable for the harm they caused. We will continue to chase down online pirates, and we will ask courts to enforce existing law so that companies like Cloudflare must enact reasonable and effective repeat infringer policies to prevent sites like Thothub from flourishing.”
Before the filing, a Thothub rep had told Motherboard that the site removes “on average about 200 entries from the main page and the forums per week and we are constantly in contact with multiple lawyers all over the world to have the illicit material removed, for which we have a dedicated team.”
But today's news of the shutdown does not bode well for Thothub, according to Jason Tucker.
"The site shutdown — that is telling," he told XBIZ. "The operator should be held liable and be made to pay for their actions. This case, if there is any meaningful defense mounted by the operator, could go on for years."
Main Image: Niece Waidhofer's Instagram page/Shutterstock