A Texas model and her lawyers at Dallas litigation boutique Reese Marketos are taking on an online pirating site, a tech giant in Silicon Valley and two adult content websites in a new copyright infringement and RICO lawsuit filed earlier this week.
The lawsuit, filed Monday in Los Angeles federal court, alleges pirate site Thothub scrubbed Deniece “Niece” Waidhofer’s work on paid social media platforms OnlyFans and Patreon and unlawfully published it on Thothub. Waidhofer also sued Silicon Valley-based website services company Cloudflare, which she alleges aided and abetted Thothub’s criminal activity by providing content delivery and security services, including “masking Thothub’s true identity and server locations.”
The adult content websites included in the defendant group are Miami-based porn site BangBros and the California-based company that owns live webcam adult content website Chaturbate. The lawsuit says both companies heavily advertise on Thothubs’s site, which in turn helps Thothub cover the costs of distributing “terabytes upon terabytes” of stolen content.
There are also 21 John Does currently listed as defendants, but Waidhofer’s lawyers are working to confirm the individuals’ identities before naming them in the litigation. According to the lawsuit, the John Does are managing members of Thothub who are believed to be the individuals pulling the strings at the company. Each operate on the Thothub site under a pseudonym, such as “Captain Thotcakes,” “Nudeleaks,” “Thighdeologist, “El Drago,” and “Bigsausagestromboli,” among others.
Waidhofer is a Fort Bend resident with nearly 2 million followers on Instagram who publishes “artistic, non-nude photographs of herself, mostly in lingerie or costume,” the lawsuit says.
She’s also among a group of creators on social media platforms like OnlyFans and Patreon who want to more aggressively protect their rights and their work. In the days following the news of the lawsuit, Rosenthal said they have been contacted by others who may either join Waidhofer’s suit or file their own.
“The infringement is ignored,” Reese Marketos associate Brett Rosenthal, Waidhofer’s lead attorney, told The Lawbook. “I think this case has a potential to start new ground in terms of pursuing adult content piracy.”
Thothub has since taken down its website, but The Texas Lawbook contacted an email address affiliated with Thothub seeking comment, which has not responded. Officials with Cloudflare and BangBros also did not immediately return requests for comment.
In an email, a representative from Chaturbate support said Waidhofer’s claims have “absolutely no merit” and that its ads ended up on Thothub via third-party advertisers “who violated Chaturbate’s referral marketing program rules” of not placing ads on sites that publish stolen content.
“Once we were notified of the ads, we 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 remove any of their CB ads that may be appearing on the site,” the email said. “While the third-party advertisers responded positively to us, any advertiser who fails to promptly comply with similar requests will be subject to suspension and/or termination of their advertiser account. We take the use to unlicensed content very seriously.”
Rosenthal said that he is considering bringing “other well-known companies” into the litigation who he alleges also played a role in enabling the piracy.
However, he said, “I’d love to see them take responsibility without having to bring a suit. We’re not eager to fight it out in the courts if there’s [another] way to resolve it.”
Rosenthal said it was important to sue other larger companies like Cloudfare, BangBros and Chaturbate off the bat because the pirates are generally more difficult to track down. He said Waidhofer had previously talked to other lawyers about enforcing her rights, but they told her nothing could be done. So when Rosenthal and Waidhofer connected, he took a different approach.
“Often in these cases, the biggest problem is being able to find defendants and the pirates themselves,” he said. “One of our strategies is to not just go after [the pirates], but the companies that enable them to do what they do in order to force the pirates to come to us by making it difficult for them to continue.”
Rosenthal explained that most creators on these paid platforms are women and that the platforms are like the Ubers and Lyfts of online entertainment in that they allow the creators more control over what they put out as well as a larger piece of the monetary pie than what they would get working through traditional production houses.
“These platforms allow them to get a majority of their earnings,” Rosenthal said. “When pirates steal, they’re stealing from individual people. Some people may have a misconception about the reasons creators do what they do. But for many, their work on these sites is how they support their families. It’s just not right for other people to come and steal the benefit of their work.
“In many ways, it’s a human rights or labor rights case, not just a copyright infringement case,” he said.
Beyond stealing her paid published content, Waidhofer also alleges in her lawsuit that Thothub published some of Waidhofer’s unpublished works that “reveal her partially nude body” — content Waidhofer never intended to publish.
What’s more problematic is that Thothub placed Waidhofer’s works next to hardcore pornography on its site, which she claims is extremely damaging to her reputation since the portrayal of her work in that context has reached millions of viewers. According to the lawsuit, Thothub and the members routinely degrade and objectify women by referring to them as “thots,” an acronym for “that ho over there.”
“Her work isn’t G-rated content, but it’s not X-rated either — it’s suggestive but not nude or obscene,” Rosenthal said. “But on Thothub, they put it next to hardcore pornography, which damages her reputation to the millions who see it.
“When these pirates infringe on those rights, they’re not only taking money out of the pockets of creators, but it affects their personal lives,” he said.
Instead of thousands of viewers seeing Waidhofer’s content on a site she curates, according to Rosenthal, “it’s millions” on Thothub. And instead of Waidhofer having control over who can see her work on the paid websites, she has no control over preventing anyone from seeing her work, including future job interviewers, romantic pursuits, or even Waidhofer’s family.
Moreover, Rosenthal said online piracy is home to a very “dark corner” of the web — one where his client and others face threats.
“If you look at some of the abuse that our client and other potential clients we’ve spoken to take online, some of these people are pretty nasty,” Rosenthal said. “Obviously there are derogatory and misogynistic comments, but also very personal, hurtful and threatening comments, exposing of people’s physical locations, home address, stalking. … They get compensated for what they do, but they have to pay a cost, too. There’s a pretty dark corner of the internet that doesn’t think they need to follow the law.”
Rosenthal said the darkness found on certain corners of the internet is why holding larger tech firms accountable for their role in piracy is all the more important.
“You’re never going to eradicate online piracy; there are always going to be people who don’t follow the law, but you want to make it as difficult as possible,” he said.
A University of Texas trained lawyer, Rosenthal said he got on the case through a referral from a law school classmate.
Reese Marketos associate Sean Gallagher is also heavily involved in the case.