Vivid and Hustler Joint Statement

Ken · 10-06-2003

As most of you know, Hustler and Vivid recently signed a licence agreement with Acacia. After spending a large sum of money fighting this lawsuit, they settled for one simple reason, because it was the right business decision. It was the right decision for them and for their affiliates.

Hustler and Vivid have built their companies into what they are today by making a series of good business decisions over a long period of time. Some of these decisions have allowed others (including most of you) to greatly profit from the adult industry. There is a time and place to fight and it would be wise to have more faith in companies who have proven themselves over the course of time, rather than make uninformed decisions based on very limited information.

Hustler and Vivid share one common goal. That goal is to be a stable force in this very unstable industry and to provide affiliates with a "safe haven" for their traffic. Safe from attacks by Acacia or anyone else who might want to harm their businesses.

As part of their settlement agreements, all FlyntDigital and VividCash affiliates are indemnified from paying Acacia fees for traffic they send to these programs. This was a condition that was not given up easily and that Hustler and Vivid spent a lot of time and money negotiating for. Therefore, if Acacia decides to go after affiliates for "contributing" to the infringement of their patents, Hustler and Vivid affiliates will already be protected.

In addition, Hustler and Vivid are simply absorbing the additional fees they have to pay Acacia and will not pass on any of these fees in the form of lower payouts, etc. Therefore, the "attack" by Acacia will have no financial impact on Hustler and Vivid affiliates. That was their goal and it has been accomplished.

Having said that, the settlement by Hustler and Vivid by no means validates Acacia's patents. That can only be done in a court of law. Hustler and Vivid respect and support the decisions of the groups who have decided to fight Acacia. We hope they achieve their end goals, whatever they might be. We have achieved ours in our own way, which we ultimately believe will best serve our affiliates and business partners.

A few months ago, when other programs tried to lower payouts because of new Visa/MasterCard regulations, what did Hustler do? They raised payouts, which caused most of their competitors to back peddle and keep their payouts the same. That single decision on the part of Hustler, put hundreds of thousands of extra dollars back in the pockets of affiliates. Why? Because Hustler made the right business decision for them and for their affiliates, which caused their competitors to remain competitive. Who was the big winner from Hustler's decision to raise payouts? Affiliates were......many of which were not even our affiliates.

In these uncertain times, Hustler and Vivid are companies that affiliates can depend on over the long term. This industry is under attack from every angle and it's going to get a lot worse before it gets better. Who do you think will survive and who will be able to make their affiliate payouts, regardless of what comes their way?

My money is on Hustler and Vivid....

Marc De · 10-06-2003

Hey Ken, can you post your contract with Acacia so all your affiliates are aware what type of 'protection' is being offered by being a Hustler / Vivid affiliate? I'm sure there are some loopholes set by Acacia and you really should identify those. You wouldn't want an affiliate assuming they are covered from sending traffic to Hustler / Vivid and then still be sued by Acacia. That could get very costly for Hustler / Vivd themselves (law suits from your affiliate against you because you claimed indemnification and it was false because of loophole a, b, or c)

That is a good move on your part and assuming you have a good agreement I'll be one VERY happy camper

Winetalk.com · 10-06-2003

Quote:

Originally posted by Marc De@Oct 6 2003, 05:22 PM
Hey Ken, can you post your contract with Acacia so all your affiliates are aware what type of 'protection' is being offered by being a Hustler / Vivid affiliate? I'm sure there are some loopholes set by Acacia and you really should identify those. You wouldn't want an affiliate assuming they are covered from sending traffic to Hustler / Vivid and then still be sued by Acacia. That could get very costly for Hustler / Vivd themselves (law suits from your affiliate against you because you claimed indemnification and it was false because of loophole a, b, or c)

That is a good move on your part and assuming you have a good agreement I'll be one VERY happy camper

MarcDE,
I know you good for your money and therefore I offer you a friendly bet...

I bet you $1,000,000 US thta you'll never see those contracts posted on the boards....the parties will claim "confidentiality clauses".

Give me the number of your escrow agent and I'll wire up the funds if you accept the bet...

homegrownmof · 10-06-2003

Quote:

Originally posted by Marc De@Oct 6 2003, 05:22 PM
Hey Ken, can you post your contract with Acacia so all your affiliates are aware what type of 'protection' is being offered by being a Hustler / Vivid affiliate? I'm sure there are some loopholes set by Acacia and you really should identify those. You wouldn't want an affiliate assuming they are covered from sending traffic to Hustler / Vivid and then still be sued by Acacia. That could get very costly for Hustler / Vivd themselves (law suits from your affiliate against you because you claimed indemnification and it was false because of loophole a, b, or c)

That is a good move on your part and assuming you have a good agreement I'll be one VERY happy camper

Good point Marc.

Seems like an "unfair business practice " for Acacia to allow Hustler and Vivid to be out there implying "Hey we settled now be an affiliate and you'll be safe too!"

Ken, I hope your attorneys looked closely at your new license. A lot closer than you did the original lawsuit.

You might find that Acacia put some "loopholes" in there that you hadn't bargained for.

I recall Ron was pretty surprised when Acacia started using CE's name in their press releases.

Winetalk.com · 10-06-2003

Marc....GFYers put another mil to the bet
http://www.gofuckyourself.com/showthread.p...067#post2487067

we goinna make your escrow agent rich!
;-)))

Marc De · 10-06-2003

Serge - a mill is too rich fro my blood

Plus I don't like the odds hehe

Winetalk.com · 10-06-2003

Quote:

Originally posted by Marc De@Oct 6 2003, 05:49 PM
Serge - a mill is too rich fro my blood Plus I don't like the odds hehe

c'mon!
I'll give you 7.25% loan!
;-)))

..but I can't dispute you on odds
;-))))

Winetalk.com · 10-06-2003

Ken,
I have a problem with your post...
this is NOT GFY, and you know it!

You can NOT insult Oprano's intelligence,
this is a BIG no-no!

If you posted this shit on GFY and 12 Clicks gave his seal of approval,
I wouldn't say a word, but...
this is OPRANO for Larr...err..Christ sake!

spanno · 10-06-2003

i bet you a million dollars you wouldn't pay up if he won

confucy · 10-06-2003

I'm disappointed in all of you! You are allowing an aggressive piece of shit like Acacia to back you into a corner, and turn the screws.

What you should be doing is joining together and fighting Acacia to the end. Are we supposed to respect Hustler, Vivid, and CE for selling out? A good business decision????? Who says so!

Taking the easy and safe way out may be good for politicians and gutless wonders, but how can major porn companies do it with a straight face.

Winetalk.com · 10-06-2003

Quote:

Originally posted by spanno@Oct 6 2003, 05:59 PM
i bet you a million dollars you wouldn't pay up if he won

spanno,
only insolvent person like you would make a bet like you did...what a pity...or was it intended to be pithy?
;-)))

Soul_Rebel · 10-06-2003

MarcDe can give 50% from the bet to Ken and have him release a copy. I bet the consequences by doing it will cost him less than $500k

Winetalk.com · 10-06-2003

Quote:

Originally posted by Soul_Rebel@Oct 6 2003, 06:03 PM
MarcDe can give 50% from the bet to Ken and have him release a copy. I bet the consequences by doing it will cost him less than $500k

Soul,
I know Marc since Marc had milk on his lips, and Marc ALWAYS was HONARABLE man...
he wouldn't do it.

Plus...in order to release the contract, Ken would need a JOINT approval of LF and Vivid and you know how long those negotiations last....
;-)))

Soul_Rebel · 10-06-2003

haha true. I proposed my greek way to increase the odds

Last edited by Soul_Rebel at Oct 6 2003, 03:08 PM

Winetalk.com · 10-06-2003

Quote:

Originally posted by Soul_Rebel@Oct 6 2003, 06:08 PM
haha true. I proposed my greek way to increase the odds

that's why I bet WASPs and not Greeks!
;-)))

Mike AI · 10-06-2003

I have some major questions about this deal, and others with the big guys.

I am very troubled with the way things are going. I have been in touch with my attorneys. I hope to speak with Ken tommorow.

Until then, for once, I am going to keep my big mouth shut.

Winetalk.com · 10-06-2003

Quote:

Originally posted by Mike AI@Oct 6 2003, 06:17 PM
I have some major questions about this deal, and others with the big guys.

I am very troubled with the way things are going. I have been in touch with my attorneys. I hope to speak with Ken tommorow.

Until then, for once, I am going to keep my big mouth shut.

Shona Tova!

Vick · 10-06-2003

Ken - with immense respect for your business acumen and obviously the names Hustler and Vivid speak volumes

a few questions

How much information can you share about the "protection" to affiliates?

Do you have a strategy for the future with regards to more copyright infringement litigation?
(Hopefully your legal team included in the agreement that under no circumstances at any time for any reason will Hustler and Vivid be libel for any licenses and or fees to Acacia or any of it subsidiaries)

What would stop another company from buying, say patents on Flash technology and then entering into copyright infringement litigation against Hustler and Vivid because you have Flash technology on sites?

I sincerely hope your legal team worked the best possible agreement and took into consideration that Acacia is buying more patents and this may be a viable business model which others may try in the very near future

Nickatilynx · 10-06-2003

btw hasn't Brian Shuster of Xpics patented the pop up console?

Winetalk.com · 10-06-2003

Quote:

Originally posted by Nickatilynx@Oct 6 2003, 06:58 PM
btw hasn't Brian Shuster of Xpics patented the pop up console?

Nick,
do you know the patents Gary Kremen has ?

few interesting ones are internet related and you know Gary's modus operandi
;-))

you ALL fucked!
;l-))

Nickatilynx · 10-06-2003

No webmasters = no sponsors = no boards = More time for museums.

I'll be left mailing ONLY you with details of Sotheby's sales ;-))

We are all fucked ;-))

Last edited by Nickatilynx at Oct 6 2003, 04:13 PM

Winetalk.com · 10-06-2003

Quote:

Originally posted by Nickatilynx@Oct 6 2003, 07:12 PM
No webmasters = no sponsors = no boards = More time for museums.

We are all fucked ;-))

Nick,
I'll do my best to have MORE TIME!
;-)))

I'll let Ken work, work, work, accumulate, accumulate, accumulate and...die at peak of his career and earning height from unforseen causes
;-))

Museums RULE!
;-)))

Winetalk.com · 10-06-2003

Quote:

Originally posted by Nickatilynx@Oct 6 2003, 07:12 PM

I'll be left mailing ONLY you with details of Sotheby's sales ;-))

..and the time for Ken';s yearly prayer
;-))

We MUST remeber him every Yom Kippur!
;-)))

cj · 10-06-2003

I still read these threads shaking my head ...

the whole concept of patenting something and not making any claims until the industry is too poor & disconnected to fight it - and the companies that are supporting this, what are you thinking?!!? Your own pockets might be protected for a few minutes but ... surely that's not the end of it?!?

Ken, did you REALLY just say that being an affiliate of hustler or vivid will protect webmasters from legal action?!?! All of my paysite exits will immediately be sent to hustler & vivid programs & I expect full protection!!! :P

Far-L · 10-06-2003

MikeAI: Be sure to give us a shout as well. Call Spike at 949-716-8080.

For what it is worth... what did Hustler and Vivid spend to figure this out and with who?

Paul Cambria might be the shizznat when it comes to first amendment issues... but a patent attorney he most certainly is not.

Can we see the bills?

SykkBoy · 10-06-2003

This is what bugs me about these ACACIA settlements, not the settlements themselves, it's that those who settle brag about how they are helping all of us.

Look, if I were in the position of an igallery, CE or vivid/hustler, I would probably settle too...hell, probably much cheaper to settle than fight. They're doing it to protect their business, but does ANYONE really think this was done for the betterment of the industry or out of the goodness of their hearts?

Goodness of their wallets yes, but better for the webmasters who send them traffic on a daily basis? nope.

Not that I have any traffic to send to either of these companies anyways....but I'm just troubled by these settlements....especially when they are presented as "in the best interests of the industry and our affiliates"

Oh well, I'm glad I'm basically out of the industry anyways except the new pill proggie and some other adult-related stuff that's not porn.....

Mike AI · 10-06-2003

Quote:

Originally posted by SykkBoy@Oct 6 2003, 08:13 PM
This is what bugs me about these ACACIA settlements, not the settlements themselves, it's that those who settle brag about how they are helping all of us.

Look, if I were in the position of an igallery, CE or vivid/hustler, I would probably settle too...hell, probably much cheaper to settle than fight. They're doing it to protect their business, but does ANYONE really think this was done for the betterment of the industry or out of the goodness of their hearts?

Goodness of their wallets yes, but better for the webmasters who send them traffic on a daily basis? nope.

Not that I have any traffic to send to either of these companies anyways....but I'm just troubled by these settlements....especially when they are presented as "in the best interests of the industry and our affiliates"

Oh well, I'm glad I'm basically out of the industry anyways except the new pill proggie and some other adult-related stuff that's not porn.....

This whole post is a pearl!!

People should read it again!

Ken · 10-06-2003

Quote:

Originally posted by Marc De@Oct 6 2003, 02:22 PM
Hey Ken, can you post your contract with Acacia so all your affiliates are aware what type of 'protection' is being offered by being a Hustler / Vivid affiliate? I'm sure there are some loopholes set by Acacia and you really should identify those. You wouldn't want an affiliate assuming they are covered from sending traffic to Hustler / Vivid and then still be sued by Acacia. That could get very costly for Hustler / Vivd themselves (law suits from your affiliate against you because you claimed indemnification and it was false because of loophole a, b, or c)

That is a good move on your part and assuming you have a good agreement I'll be one VERY happy camper

Marc,

As Serge pointed out and you know very well, we can't post our contract. However, you do bring up a good point and we would be happy to clarify.

Acacia has agreed to indemnify our affiliates ONLY for traffic they are sending to us. So they would not have a blanket indemnification. They would ONLY be indemnified for the portion of business they are sending to Hustler and Vivid. Basically, this protects them from possible "contributing to infringement". Will Acacia go after affiliates for "contributing"? Who knows. We just thought it would be nice to bundle that in our deal so our affiliates didn't have to deal with this issue should it ever arise.

In no way are we saying that affiliates who are not sending to Hustler and Vivid are going to have problems, nor do we want our settlement to scare anyone. It shouldn't. It was simply the right choice for Hustler and Vivid. It might not be the right choice for everyone.

homegrownmof · 10-06-2003

Quote:

Originally posted by Ken+Oct 6 2003, 08:47 PM-->
QUOTE (Ken @ Oct 6 2003, 08:47 PM)

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10-06-2003 #30

Ken

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Quote:

Originally posted by Mike AI+Oct 6 2003, 05:36 PM-->
QUOTE (Mike AI @ Oct 6 2003, 05:36 PM)

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10-06-2003 #31

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Quote:

Originally posted by Far-L@Oct 6 2003, 04:49 PM
MikeAI: Be sure to give us a shout as well. Call Spike at 949-716-8080.

For what it is worth... what did Hustler and Vivid spend to figure this out and with who?

Paul Cambria might be the shizznat when it comes to first amendment issues... but a patent attorney he most certainly is not.

Can we see the bills?

Excuse me sir...I speak jive allow me to "whiten" up that release...

Yo Yo ...can you hear me player?
We likes you sending dat traffic o' yurs ta our programms...soswes taken some o' dat mon-ay u hep us'ns urn n gives it ups to da playas at Acadia.

Iz dun it fer ur on gud. Weez jest tryn to hep at Hustler 'n Vivid...[dont fergit Cashquest too!] Sos eye dint thinks u'd mine if'n sum o'dat mon-ay gut spent covern' hour asses...jess in case this soot mite takes long.

Continues to sends ur traffics to us. In da near futa weez spends it on uther thangs 4 ur on gud.

UR Fiends
@ Hustler 'n Vivid [don't fer git Cashquest too!]

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10-06-2003 #32

homegrownmof

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Quote:

Originally posted by cj@Oct 6 2003, 07:28 PM
I still read these threads shaking my head ...

the whole concept of patenting something and not making any claims until the industry is too poor & disconnected to fight it - and the companies that are supporting this, what are you thinking?!!? Your own pockets might be protected for a few minutes but ... surely that's not the end of it?!?

Ken, did you REALLY just say that being an affiliate of hustler or vivid will protect webmasters from legal action?!?! All of my paysite exits will immediately be sent to hustler & vivid programs & I expect full protection!!! :P

CJ,

Just be sure to remember that you will be protected for only the biz you do with Hustler/Vivid.

The video content in your actual paysites would be subject to Acacia's license demands.

Also, good point re: the next wave of patent claims- rumors of Wlaters, Piccionelli, FM, Shuster, Gary Kremen all possibly doing similar things

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10-06-2003 #33

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Quote:

Originally posted by Ken+Oct 6 2003, 08:58 PM-->
QUOTE (Ken @ Oct 6 2003, 08:58 PM)

Quote:

Originally posted by -Mike AI@Oct 6 2003, 05:36 PM

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10-06-2003 #34

Ken

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Quote:

Originally posted by homegrownmof@Oct 6 2003, 05:56 PM
Ken,

If Acacia said from day1 that they weren't going to "double dip" on license fees (i.e. tag the sponsor program and the affiliate member of that program) how is it "nice to bundle that in our deal so our affiliates didn't have to deal with this issue should it ever arise"?

HomeGrownMof,

I'm not sure what Acacia said they would and wouldn't do verbally. But I do know that this clause was not in our original agreement and it took quite a bit of back and fourth to have it inserted in a way that our attorneys were comfortable with.

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10-06-2003 #35

Ken

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Quote:

Originally posted by Serge_Oprano@Oct 6 2003, 02:58 PM
Ken,
I have a problem with your post...
this is NOT GFY, and you know it!

You can NOT insult Oprano's intelligence,
this is a BIG no-no!

If you posted this shit on GFY and 12 Clicks gave his seal of approval,
I wouldn't say a word, but...
this is OPRANO for Larr...err..Christ sake!

Serge,

Let's see....1/3rd of the posts on this thread are from you....most of them about nothing relevant.

You're right, this is NOT GFY! It's painfully obvious

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10-06-2003 #36

Far-L

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Quote:

Originally posted by Ken@Oct 6 2003, 05:58 PM
I disagree. Sykkboy said several things that are simply not true.

1. We never claimed that our settling would help the industry as a whole. I honestly doubt it won't effect it one way or the other. There are much larger threats to the industry than Acacia.

2. We never claimed this was done out of the goodness of our hearts

3. We did say over and over that this was the best choice for Hustler and Vivid, which is true. Part of running a successful business is making sound business decisions. They made the decision that they thought was best for their respective businesses.

4. It remains to be seen whether it will be better for our webmasters, but it certainly is not worse. They can rest assured that they will not be financially harmed by this issue with regard to the business they do with us. Hustler and Vivid have simply ensured that they will be able to continue paying webmasters a heafty comission now and into future.

I understand his point.....but in this case, if you look at the statements made, nothing he said is all that accurate.

Ken... kindly allow me to retort...

1. That is not correct. I was told that if Hustler/Vivid/Wicked settled that it would be to the benefit of all.

2. Your press release regarding the favor you did your affiliates and the money you spent to do it suggests otherwise.

3. Sound choices and successful business? That must be what finally led Hustler and Vivid to pay you to run their internet show rather than keep doing it themselves... (I have been around long enough to remember Tony Tang and what do you think Vivid paid on that auction site launch?)

4. I am glad you are ok with it. Can I please send all the other patent carpetbaggers to your door?

You know, I really don't remember you ever being part of the discussions about what to do at all before so it is nice to see you so involved now.

Sykkboy expressed an opinion and for you to say that is false is inappropriate, imo. Especially in light of what I know and the questions that I raise.

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10-06-2003 #37

homegrownmof

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Quote:

Originally posted by Serge_Oprano+Oct 6 2003, 07:06 PM-->
QUOTE (Serge_Oprano @ Oct 6 2003, 07:06 PM)

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10-06-2003 #38

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For what it's worth

ex·tort ( P ) Pronunciation Key (k-stôrt)
tr.v. ex·tort·ed, ex·tort·ing, ex·torts
To obtain from another by coercion or intimidation.

http://dictionary.reference.com/search?q=extort

again please bear in mind that Acacia could just be the beginning and companies could find themselves facing these situations repeatedly

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10-06-2003 #39

Far-L

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"We are going to be at $200 million a year without writing a single line of code"

Who said this?

1. An inventor

2. A Gangster

3. An Attorney named Rob Berman, Acacia

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10-06-2003 #40

Ken

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Quote:

« Previous Thread | Next Thread »

Originally posted by Far-L+Oct 6 2003, 06:34 PM-->
QUOTE (Far-L @ Oct 6 2003, 06:34 PM)

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10-06-2003 #41

Ken

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Quote:

Originally posted by homegrownmof@Oct 6 2003, 06:47 PM
I think Serge actually did make 1 salient comment- see above.

This is a new business model for some people- patent licensing. And not just newbies like Berman. Seasoned web vets.

Will Hustler /Vivid just keep brushing off the last "We're settling!" press release ?

Ken you are one of the brightest around- when are you going to take the reins from Cambria.

homegrownmof,

Don't ever give Serge credit for anything. He'll remember it and use it against you whenever he has a chance

Thanks for the good words, but I'm certainly no attorney. I understand and appreciate the arguement "what about the next company that comes knocking".

I can tell you that Hustler and Vivid do not make a policy of settling lawsuits. If other companies think that this means they are easy targets, they are sadly mistaken. Any future lawsuits will be dealt with on a case by case basis on their own merits.

You know that Hustler was sued a long time ago. They did not just settle quickly. That might be the perception, but that is not what happened.

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10-06-2003 #42

Far-L

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Actually, since I have made money with and for Steve H and Larry H whether or not you take me seriously or not matters very little.

Regarding CE, yes we work with them, but their settlement does not seem to cover us now does it?

This is not about ego, and this is not emotional. This is business. I think our debate on the subject presents a healthy discourse and that is good for business too.

We are both entitled our opinions and the manner in which we choose to run our respective businesses.

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10-06-2003 #43

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Time for me to bow out..

Last edited by Far-L at Oct 6 2003, 07:36 PM

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10-06-2003 #44

Ken

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Quote:

Originally posted by Far-L@Oct 6 2003, 07:32 PM
Actually, since I have made money with and for Steve H and Larry H whether or not you take me seriously or not matters very little.

Regarding CE, yes we work with them, but their settlement does not seem to cover us now does it?

This is not about ego, and this is not emotional. This is business. I think our debate on the subject presents a healthy discourse and that is good for business too.

We are both entitled our opinions and the manner in which we choose to run our respective businesses.

I agree that a healthy debate is a good thing. But offering to send all of the "carpetbaggers" to my door was personal. You act as if I simply advised all of my client to settle and it was so.

I find it a little hypocritical that you chose to question Steve and Larry's decision making ability because they chose to use our services when your own site runs through someone elses affiliate program. I find it even more hypocritical that you think we "ran from the battle field", but you are still partners with another company who settled. Maybe your site is not protected, but it certainly benefits from all the traffic that goes through the CE program, doesn't it?

If you are that committed to this cause, why not terminate your partnership with CE since they settled? Just curious as to why you've had a lot more to say about Hustler and Vivid than you did about CE?

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10-06-2003 #45

Marc De

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Ken - thanks for clarifying that statement.

Just so everyone is clear, you can NOT double dip in patent lawsuits. You can't collect damages from infridgers and conducer(s). You may only collect ONE set of damages (from any of the parties), you don't get paid more than once for reasonable fees. Therefore, there should have been virtually NO negotiations on your part to get Acacia to indemnify YOUR affiliates for the traffic they send to Vivid / Hustler since you are now in compliance with their patent (in the form of a license). If there is no patent infridgement (since you have a license) then obviously there is no conducing of infridgement. This really isn't big news. If I signed a settlement all my webmasters would be protected as well since there would no patent infridgement since I am now a licensed party.

Whenever a bully arises someone must confront them and beat them down. ARS is committed to invalidating this patent. Some can argue the best business decision is to settle (it could obviously be cheaper) but I choose not to let this be a precedent for anyone else to beckon my door or this industries door again.

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10-06-2003 #46

Far-L

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Ken: I don't mean any offense and I think you are taking it much too personally.

You are not a hypocrite in the least, nor am I.

You had little to nothing to do with Hustler and Vivid settling. I don't blame you or challenge your business decision in the matter. What I took issue with I was very specific regarding here and at GFY.

I think Steve and Larry made good decisions to go with you. They had mixed success running internet operations previously and so that represented smart business on their part. I don't deny them or you your geniuses and talents in business and I applaud your successes.

I don't have a problem with you settling. I just have a problem with the way you spun it in your announcement.

I am not at liberty to discuss my arrangements with CE. Perhaps you would like to ask Ron directly about what he thinks of us, how much traffic CE is sending, how things are going these days and what is in store for the future.

Far-L

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10-07-2003 #47

Ken

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Quote:

Originally posted by Marc De@Oct 6 2003, 08:06 PM
Ken - thanks for clarifying that statement.

Just so everyone is clear, you can NOT double dip in patent lawsuits. You can't collect damages from infridgers and conducer(s). You may only collect ONE set of damages (from any of the parties), you don't get paid more than once for reasonable fees. Therefore, there should have been virtually NO negotiations on your part to get Acacia to indemnify YOUR affiliates for the traffic they send to Vivid / Hustler since you are now in compliance with their patent (in the form of a license). If there is no patent infridgement (since you have a license) then obviously there is no conducing of infridgement. This really isn't big news. If I signed a settlement all my webmasters would be protected as well since there would no patent infridgement since I am now a licensed party.

Whenever a bully arises someone must confront them and beat them down. ARS is committed to invalidating this patent. Some can argue the best business decision is to settle (it could obviously be cheaper) but I choose not to let this be a precedent for anyone else to beckon my door or this industries door again.

Marc,

While what you said makes perfect sense, I don't think that is always 100% true. I'm going to get clarification on this issue because I know it was not in the original agreement. I personally asked for it to be added and there was a lot of back and fourth about it. I'm not an attorney, so you very well could be right.

Either way, it's really a non-issue I suppose. Our intention was not and is not to "scare" affiliates into using our programs. Hopefully they will use them for other reasons!

Ken

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10-07-2003 #48

Ken

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Quote:

Originally posted by Far-L@Oct 6 2003, 08:06 PM
Ken: I don't mean any offense and I think you are taking it much too personally.

You are not a hypocrite in the least, nor am I.

You had little to nothing to do with Hustler and Vivid settling. I don't blame you or challenge your business decision in the matter. What I took issue with I was very specific regarding here and at GFY.

I think Steve and Larry made good decisions to go with you. They had mixed success running internet operations previously and so that represented smart business on their part. I don't deny them or you your geniuses and talents in business and I applaud your successes.

I don't have a problem with you settling. I just have a problem with the way you spun it in your announcement.

I am not at liberty to discuss my arrangements with CE. Perhaps you would like to ask Ron directly about what he thinks of us, how much traffic CE is sending, how things are going these days and what is in store for the future.

Fair enough.....no offense taken. I think we've both made our points.

I absolutely wish you guys the best in your effots and would like to chat sometime soon about us financially participating in your future efforts through the IMPA.

Ken

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10-07-2003 #49

Marc De

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Ken - I'm no lawyer either but I think its a hard case to file against affiliates of a program that are in compliance with a license attempting to prove they are conducing the infridgement of a patent that not being infridged upon. What a mouthful.

*thinking out loud* It might be a good idea for me to sponsor a 1 hour radio show, question and answer with my IP lawyer. It would be nice for all these webmasters currently without counsel to hear some 'opinions' from a qualified lawyer. Education can only help the industry... Something I know 'someone' is afraid of. Fortunately we're not a bunch of uneducated, weak willed, wanna-be-businessmen as 'someone' may have initially thought

Marc De

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10-07-2003 #50

Mike AI

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Quote:

Originally posted by Marc De@Oct 6 2003, 11:32 PM
Ken - I'm no lawyer either but I think its a hard case to file against affiliates of a program that are in compliance with a license attempting to prove they are conducing the infridgement of a patent that not being infridged upon. What a mouthful.

*thinking out loud* It might be a good idea for me to sponsor a 1 hour radio show, question and answer with my IP lawyer. It would be nice for all these webmasters currently without counsel to hear some 'opinions' from a qualified lawyer. Education can only help the industry... Something I know 'someone' is afraid of. Fortunately we're not a bunch of uneducated, weak willed, wanna-be-businessmen as 'someone' may have initially thought

Marc, lets talk tommorow - I think we should be able to help you arrange this.

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Oprano - The Business of Porn - Archive - Top

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10-06-2003	#8
Winetalk.com Prostate Examiner I quoff fine wine at corkd.com Join Date: Oct 2002 Location: good 'ole USA Posts: 21,018	Ken, I have a problem with your post... this is NOT GFY, and you know it! You can NOT insult Oprano's intelligence, this is a BIG no-no! If you posted this shit on GFY and 12 Clicks gave his seal of approval, I wouldn't say a word, but... this is OPRANO for Larr...err..Christ sake! __________________ why dogs sniff each other butts?

10-06-2003	#9
spanno Members Join Date: Dec 2002 Posts: 187	i bet you a million dollars you wouldn't pay up if he won __________________ find it here

10-06-2003	#26
SykkBoy Polishing the Chrome on Bishops Motorcycle $100 for every ImLive sign-up Join Date: Oct 2002 Location: Hell: Bowels : Level 9 Posts: 4,153	This is what bugs me about these ACACIA settlements, not the settlements themselves, it's that those who settle brag about how they are helping all of us. Look, if I were in the position of an igallery, CE or vivid/hustler, I would probably settle too...hell, probably much cheaper to settle than fight. They're doing it to protect their business, but does ANYONE really think this was done for the betterment of the industry or out of the goodness of their hearts? Goodness of their wallets yes, but better for the webmasters who send them traffic on a daily basis? nope. Not that I have any traffic to send to either of these companies anyways....but I'm just troubled by these settlements....especially when they are presented as "in the best interests of the industry and our affiliates" Oh well, I'm glad I'm basically out of the industry anyways except the new pill proggie and some other adult-related stuff that's not porn..... __________________ ADULT PAYMASTER - All Site Access - Paying $70 October 5th! "Love your enemies...just in case your friends turn out to be bastards." - unknown

10-06-2003	#1
Ken Members Join Date: Dec 2002 Posts: 70	As most of you know, Hustler and Vivid recently signed a licence agreement with Acacia. After spending a large sum of money fighting this lawsuit, they settled for one simple reason, because it was the right business decision. It was the right decision for them and for their affiliates. Hustler and Vivid have built their companies into what they are today by making a series of good business decisions over a long period of time. Some of these decisions have allowed others (including most of you) to greatly profit from the adult industry. There is a time and place to fight and it would be wise to have more faith in companies who have proven themselves over the course of time, rather than make uninformed decisions based on very limited information. Hustler and Vivid share one common goal. That goal is to be a stable force in this very unstable industry and to provide affiliates with a "safe haven" for their traffic. Safe from attacks by Acacia or anyone else who might want to harm their businesses. As part of their settlement agreements, all FlyntDigital and VividCash affiliates are indemnified from paying Acacia fees for traffic they send to these programs. This was a condition that was not given up easily and that Hustler and Vivid spent a lot of time and money negotiating for. Therefore, if Acacia decides to go after affiliates for "contributing" to the infringement of their patents, Hustler and Vivid affiliates will already be protected. In addition, Hustler and Vivid are simply absorbing the additional fees they have to pay Acacia and will not pass on any of these fees in the form of lower payouts, etc. Therefore, the "attack" by Acacia will have no financial impact on Hustler and Vivid affiliates. That was their goal and it has been accomplished. Having said that, the settlement by Hustler and Vivid by no means validates Acacia's patents. That can only be done in a court of law. Hustler and Vivid respect and support the decisions of the groups who have decided to fight Acacia. We hope they achieve their end goals, whatever they might be. We have achieved ours in our own way, which we ultimately believe will best serve our affiliates and business partners. A few months ago, when other programs tried to lower payouts because of new Visa/MasterCard regulations, what did Hustler do? They raised payouts, which caused most of their competitors to back peddle and keep their payouts the same. That single decision on the part of Hustler, put hundreds of thousands of extra dollars back in the pockets of affiliates. Why? Because Hustler made the right business decision for them and for their affiliates, which caused their competitors to remain competitive. Who was the big winner from Hustler's decision to raise payouts? Affiliates were......many of which were not even our affiliates. In these uncertain times, Hustler and Vivid are companies that affiliates can depend on over the long term. This industry is under attack from every angle and it's going to get a lot worse before it gets better. Who do you think will survive and who will be able to make their affiliate payouts, regardless of what comes their way? My money is on Hustler and Vivid....

10-06-2003	#2
Marc De Members Join Date: Nov 2002 Posts: 91	Hey Ken, can you post your contract with Acacia so all your affiliates are aware what type of 'protection' is being offered by being a Hustler / Vivid affiliate? I'm sure there are some loopholes set by Acacia and you really should identify those. You wouldn't want an affiliate assuming they are covered from sending traffic to Hustler / Vivid and then still be sued by Acacia. That could get very costly for Hustler / Vivd themselves (law suits from your affiliate against you because you claimed indemnification and it was false because of loophole a, b, or c) That is a good move on your part and assuming you have a good agreement I'll be one VERY happy camper

10-06-2003	#6
Marc De Members Join Date: Nov 2002 Posts: 91	Serge - a mill is too rich fro my blood Plus I don't like the odds hehe

10-06-2003	#10
confucy Members Join Date: Oct 2002 Posts: 1,066	I'm disappointed in all of you! You are allowing an aggressive piece of shit like Acacia to back you into a corner, and turn the screws. What you should be doing is joining together and fighting Acacia to the end. Are we supposed to respect Hustler, Vivid, and CE for selling out? A good business decision????? Who says so! Taking the easy and safe way out may be good for politicians and gutless wonders, but how can major porn companies do it with a straight face.

10-06-2003	#12
Soul_Rebel Members Join Date: Dec 2002 Posts: 82	MarcDe can give 50% from the bet to Ken and have him release a copy. I bet the consequences by doing it will cost him less than $500k

10-06-2003	#16
Mike AI Administrator Want to see your own Advertising Here! Join Date: Oct 2002 Posts: 11,618	I have some major questions about this deal, and others with the big guys. I am very troubled with the way things are going. I have been in touch with my attorneys. I hope to speak with Ken tommorow. Until then, for once, I am going to keep my big mouth shut. __________________ Make big money on your Domains! Why wait 40 days to get paid with the other guys? Parked.com pays the most for your traffic, and cuts checks twice a month!

10-06-2003	#18
Vick Celebrating Company's Success with A Beer From Mini Bar Want to see your own Advertising Here! Join Date: Oct 2002 Location: Little South of Sanity Posts: 6,551	Ken - with immense respect for your business acumen and obviously the names Hustler and Vivid speak volumes a few questions How much information can you share about the "protection" to affiliates? Do you have a strategy for the future with regards to more copyright infringement litigation? (Hopefully your legal team included in the agreement that under no circumstances at any time for any reason will Hustler and Vivid be libel for any licenses and or fees to Acacia or any of it subsidiaries) What would stop another company from buying, say patents on Flash technology and then entering into copyright infringement litigation against Hustler and Vivid because you have Flash technology on sites? I sincerely hope your legal team worked the best possible agreement and took into consideration that Acacia is buying more patents and this may be a viable business model which others may try in the very near future __________________ Pssst Click the Button Above I once wanted to be a Gynecologist But I couldn't find an opening

10-06-2003	#19
Nickatilynx Banned Want to see your own Advertising Here! Join Date: Oct 2002 Location: Vancouver Canada Posts: 15,115	btw hasn't Brian Shuster of Xpics patented the pop up console?

10-06-2003	#24
cj Members Want to see your own Advertising Here! Join Date: Oct 2002 Location: Down Under Posts: 5,202	I still read these threads shaking my head ... the whole concept of patenting something and not making any claims until the industry is too poor & disconnected to fight it - and the companies that are supporting this, what are you thinking?!!? Your own pockets might be protected for a few minutes but ... surely that's not the end of it?!? Ken, did you REALLY just say that being an affiliate of hustler or vivid will protect webmasters from legal action?!?! All of my paysite exits will immediately be sent to hustler & vivid programs & I expect full protection!!! :P

10-06-2003	#25
Far-L Members Join Date: Nov 2002 Posts: 269	MikeAI: Be sure to give us a shout as well. Call Spike at 949-716-8080. For what it is worth... what did Hustler and Vivid spend to figure this out and with who? Paul Cambria might be the shizznat when it comes to first amendment issues... but a patent attorney he most certainly is not. Can we see the bills?