Doe v. MG Freesites, LTD

676 F.Supp.3d 1136

Jane DOE #1, and Jane Doe #2, on behalf of themselvesand all others similarly situated, Plaintiffs, v. MG FREESITES, LTD, d/b/a "Pornhub", a foreign entity;MG Freesites II LTD, a foreign entity; Mindgeek, S.A.R.L.,a foreign entity; Mindgeek USA, Incorporated, a Delaware corporation;MG CY Holdings LTD, a foreign entity; Mindgeek Content RT Limited,a foreign entity; 9219-1568 Quebec Inc. d/b/a Mindgeek,a foreign entity; MG Billing LTD, a foreign entity, Defendants.

7:21-cv-00220-LSC

United States District Court, N.D. Alabama, Western Division

Signed February 9, 2022

Gregory M. Zarzaur, Kelsie Marie Overton, Zarzaur Law LLC, Birmingham, AL, Joshua Patrick Hayes, Prince, Glover, Hayes, Tuscaloosa, AL, Alexandria MacMaster, Brian Dooley Kent, Pro Hac Vice, Gaetano Anthony D'Andrea, Pro Hac Vice, Jillian Patricia Roth, Pro Hac Vice, M. Stewart Ryan, Pro Hac Vice, Victor Paul Bucci, II, Pro Hac Vice, Laffey, Bucci & Kent, LLP, Philadelphia, PA, Joseph W. Jesiolowski, Pro Hac Vice, Conrad O'Brien PC, Philadelphia, PA, Kevin D. Kent, Mark B. Schoeller, Vanessa Huber, Pro Hac Vice, Clark Hill, PLC, Philadelphia, PA, Benjamin W. Bull, Pro Hac Vice, Christen M. Price, Pro Hac Vice, Danielle M. Bianculli Pinter, Pro Hac Vice, Peter A. Gentala, Pro Hac Vice, National Center on Sexual Exploitation, Washington, DC, Daniel Blake Williams, Prince Glover & Hayes, Tuscaloosa, AL, James Michael Papantonio, Pro Hac Vice, Levin-Papantonio, Pensacola, FL, Kimberly Lambert Adams, Pro Hac Vice, Barr & Mougey, PA, Pensacola, FL, Kathryn L. Avila, Pro Hac Vice, Levin, Papantionio, Rafferty, Penscola, FL, for Plaintiff Jane Doe #1.

Hayden A. Coleman, Pro Hac Vice, Kathleen N. Massey, Pro Hac Vice, Dechert LLP, New York, NY, Angela Liu, Pro Hac Vice, Dechert LLP, Chicago, IL, Christopher R. Boisvert, Pro Hac Vice, Dechert, LLP, Philadelphia, PA, Diane L. Cafferata, Pro Hac Vice, Michael Ernest Williams, Pro Hac Vice, Michael Zeller, Pro Hac Vice, Thomas D. Nolan, Pro Hac Vice, Robert Jason Becher, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Lindsay Pickell Lounsbury, Sara M. Turner, William G. Somerville, III, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., Birmingham, AL, for Defendants MG Freesites LTD, MG Freesites II LTD, Mindgeek S.A.R.L., Mindgeek USA Incorporated, MG CY Holdings LTD, Mindgeek Content RT Limited, MG Billing LTD.

Hayden A. Coleman, Pro Hac Vice, Kathleen N. Massey, Pro Hac Vice, Dechert LLP, New York, NY, Angela Liu, Pro Hac Vice, Dechert LLP, Chicago, IL, Christopher R. Boisvert, Pro Hac Vice, Dechert, LLP, Philadelphia, PA, Diane L. Cafferata, Pro Hac Vice, Michael Ernest Williams, Pro Hac Vice, Michael Zeller, Pro Hac Vice, Thomas D. Nolan, Pro Hac Vice, Robert Jason Becher, Pro Hac Vice, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Lindsay Pickell Lounsbury, Sara M. Turner, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC., Birmingham, AL, for Defendant 9219-1568 Quebec Inc.

MEMORANDUM OF OPINION AND ORDER

L. Scott Coogler, United States District Judge

I. Introduction

This cause comes before the Court on Defendants' motion to dismiss Plaintiffs' First Amended Complaint. (Doc. 24.) Plaintiffs, two individuals proceeding pseudonymously who are victims and survivors of childhood sex trafficking, bring this putative class action against Defendants MG Freesites, LTD, d/b/a "Pornhub"; MG Freesites II, LTD; Mindgeek S.A.R.L.; Mindgeek USA Incorporated; MG CY Holdings LTD; Mindgeek Content RT Limited; 9219-1568 Quebec, Inc., d/b/a Mindgeek; and MG Billing LTD, alleging that Defendants violated federal sex trafficking and child pornography laws by owning, operating, controlling, and profiting from websites that provide public video platforms to share and view illegal child pornography. For the reasons set forth below, Defendants' motion to dismiss the complaint is due to be denied.

II. Background

The following facts are taken from the Plaintiffs' complaint and are assumed to be true for purposes of the pending motion to dismiss. Defendants¹ own and operate one of the largest and most-visited pornographic websites in the world, www.Pornhub.com ("Pornhub"), as well as www.YouPorn.com, www.RedTube.com, www.WTube.com, and www.Tube8.com. FAC ¶¶ 15, 46. In 2019, Pornhub averaged 115 million visits a day and acquired 1.36 million hours of new content. Id. ¶ 47. Nearly seven million new videos were uploaded to Pornhub in 2019. Id. Thirty-nine billion searches were performed over 42 billion visits. Id. Pornhub garnered more traffic than tech giants Amazon and Netflix that year. Id. ¶ 167. The United States is the country with the highest daily traffic on Pornhub, and Alabama users rank second in the nation in time spent on Pornhub. Id. ¶ 48.

Pornhub's main feature is a library of pornographic videos uploaded by third-party users, which Defendants make available for free to anyone, without a viewer even having to create an account. Id. ¶¶ 52, 96. Until December 2020, videos could be uploaded anonymously, and there was no requirement that the uploader verify the age or consent of those depicted in the videos. Id. ¶ 97. Until December 2020, visitors to the site could not only view but also download videos. Id. ¶¶ 98, 119. Defendants monetize the pornographic content on their websites in various ways: offering subscription services, selling advertising space, entering into profit sharing agreements with uploaders, and data mining. Id. ¶¶ 98, 101, 148. Defendants' enterprise is profitable: annual revenues are at least $500 million. Id. ¶ 128.

Defendants' business model is predicated on maximizing views and traffic to Pornhub. Id. ¶ 56. Defendants accomplish this by exerting control over every video on the site, despite its source, through creating and editing titles, tags, keywords, storylines, themes, and scenes. Id. For example, when a user uploads a new video, Defendants require the user to choose a minimum number of tags to describe the content from provided options, and when users choose certain tags, Defendants suggest related tags to increase traffic to the video. Id. ¶ 65. Defendants also create thumbnails for the videos, which are a key component for attracting viewers, advising uploaders to carefully choose a thumbnail from provided options that will appeal to viewers. Id. ¶ 74. Additionally, Defendants create timelines placed underneath videos to demonstrate the level of intensity of activity within the video, which enables users to identify and quickly "skip" to various activity within the video. Id. ¶ 72. Defendants also control the comments surrounding videos, the process for viewing, posting, and creating accounts, and the process for encouraging and rewarding income and fees for downloaded and viewed content. Id. ¶ 57. Pornhub maintains a 40-page instruction guide, called "The Pornhub Playbook," advising how to make money from the site. Id. ¶ 58. Pornhub advises uploaders on what types of videos and images to post, specifically suggests keywords and categories, and will edit non-compliant posts. Id.

Defendants offer several profit-sharing programs with uploaders, including their "Modelhub" program. Id. ¶¶ 61-67, 76, 82. Modelhub offers the "amateur" pornographer various ways to upload content and create view-based revenue on Pornhub and other sites. Id. ¶ 82. Modelhub members can agree to sell their videos, as opposed to free streaming, through subscriptions or fee-based "fan club" programs, and if they do, Modelhub members are granted an elevated status on the site, promotion of their content, and support services to assist their viewership and profit sharing. Id. ¶ 77. Defendants closely control the content that Modelhub members upload to ensure that it includes the scenes, keywords, tags, and titles that Defendants know successfully generate traffic to videos, providing a 15-page "How to Succeed" directive for Modelhub members. Id. Defendants take a direct cut of the revenue garnered by Modelhub members through advertising or subscriptions. Id. ¶¶ 77, 83. Defendants threaten to withdraw revenue if their rules are not followed. Id. ¶ 90. Because Defendants control the flow of money to Modelhub members, they can force compliance with content creation according to their specific parameters. Id. ¶ 67.

Defendants do not rely exclusively on user-generated videos and images but also include on their platforms videos and images from a number of "Content Partners," which are companies that produce pornography, including Brazzers, Fake Taxi, and Kink.com. Id. ¶¶ 52, 78. Defendants split advertising revenue with their Content Partners. Id. ¶ 77. Defendants own some of the entities they describe as Content Partners, including Brazzers, Babes.com, Digital Playground, Reality Kings, and Twistys. Id. ¶ 53. Defendants also own their own production studios and admit that they create at least some videos and images on Pornhub. Id. ¶ 54. Further, Defendants store a copy of all content on its servers, regardless of whether the content is available for public view. Id. ¶ 143.

Defendants' use of keywords and tags is essential for search engine optimization ("SEO"), which drives users Googling pornographic content to Defendants' websites. Id. ¶ 66. Defendants capitalize on this, describing themselves as "A leader in IT, Web Development and SEO." Id. Defendants boast, "[w]ith over 100 million daily visitors to some of the world's largest trafficked websites, we're uncovering trends and user habits overnight that takes others months to gather." Id. Defendants have a Search Engine Marketing team dedicated to developing "successful strategies to ensure top-ranking in search engine traffic." Id. Defendants' focus on certain keywords and tags, and their creation of related search terms, has resulted in Defendants' websites regularly appearing among the top results for virtually any pornography-related Google search, and even for searches unrelated to pornography but which contain...