How Adult Tumblrs Could Land Yahoo In A Legal Pinch

Marissa Mayer says she wants to "let Tumblr be Tumblr" after acquiring David Karp's microblogging service for $1.1 billion. But the bigger problem for Yahoo might be porn pages that don't reveal enough.

Of all the questions about monetization, advertising, and scale that have surfaced since Yahoo announced its $1.1 billion acquisition of Tumblr, one giant point is getting buried: what to do with Tumblr's porn?

Not just the fact that it's there--11.4% of Tumblr's 200,000 most visited domains are adult; 16.6 percent of Tumblr traffic happens on adult blogs; and 22.37% of referral traffic from external sites comes from adult websites, according to a study by the SimilarGroup.

The real problem is that much of that adult material gets shared and reposted into oblivion--easy reblogging is one of Tumblr's greatest selling points and the fabric of many of its communities. But porn, unlike pretentious food or non-porny things fitting perfectly into other things, is strictly regulated. By federal law, anyone who creates adult content must maintain a detailed database of records proving that everyone appearing in the project is above the age of 18 (a set of regulations commonly referred to as 2257 regulations). But the law doesn't just apply to people who shoot adult content (also referred to as "primary producers"), it also applies to people who upload and distribute adult content (known as "secondary producers"), who are expected to maintain their own records--or, at the very least, maintain a list with the location of the records that apply to the content they're showcasing. Not maintaining these records is considered a federal offense--even if everyone in the content you're distributing is above the age of 18.

Tumblr porn rebloggers often use stolen or unsourced material. And they generally do not include legally compliant 2257 statements in the sidebars of their Tumblrs; more to the point, they are pretty much incapable of doing so, as it's generally hard to source a legal name and ID for an actress you don't even know the name of. David Karp's announcement Monday morning re-stated his mission to, "empower creators to make their best work and get it in front of the audience they deserve" (italics his). But most people who upload or post porn on Tumblr aren't creators at all--they're "curators" at best, and thieves at worst.

Tech journalists have long wondered whether Tumblr's porn-friendly stance would prevent it from achieving higher levels of success (or at least a major sale). But the focus has mostly been on whether too many pink pixels taint Yahoo's taupe brand--most mainstream advertisers might squirm when promos for their products appear alongside smut. Yahoo CEO Marissa Mayer seems fine with some of that, saying in a conference call Monday, "I think the richness and breadth of content available on Tumblr--even though it may not be as brand safe as what's on our site--is what's really exciting and allows us to reach even more users." Already, Yahoo-owned Flickr allows photographers to upload adult-themed photos (albeit with the requirement that they be labeled "restricted" so as to hide them from under-18 eyes). And competitor Google's Blogspot begrudgingly allows adult-themed blogs (as long as they exist behind a page that alerts the reader that they contain mentions of sex.

If the adult section of Tumblr were solely made up of erotic artists like Nikola Tamindzic and Ellen Stagg, a simple adult content flagging/warning system would likely be enough to keep Tumblr (and Yahoo) safe. But because that's not the case--because those porn GIFs are, more often than not, clips lifted from professionally made porn movies--Tumblr's porn problem is complicated by the twin issues of rights and records-keeping. While the likelihood of a federal crackdown on Tumblr is rather slim (at least while Obama remains in the White House), it's certainly not impossible; Yahoo's in-house counsel may not be willing to continue Tumblr's policy of turning a blind eye to its users' violation of federal law.

The greater rights issue at play here isn't limited to porn, of course: Virtually all sites that are driven by user uploaded content have had to contend with users uploading content they don't have the rights to, to which anyone caught up in YouTube's frequent purges of copyright-violating content can attest. But because adult content exists in a rarified legal state, one very different from any other form of content, the copyright issue adds an additional wrinkle that creates a potentially ugly legal situation that Yahoo will likely want to avoid.

If it were so inclined, Tumblr could hold on to the porn and remain in the good graces of the feds by requiring its users to upload and share original content only--content that they could warrant that they had the proper records for--in other words, to limit adult content to the creators that Karp cites in his mission statement. (Tumblr cut erotica from its official directory not long after its launch.) But the infrastructure required to do that is likely more than Yahoo is willing to invest in porn; which means that, in order to remain legally compliant, Yahoo is far more likely to abandon adult content entirely, casting out the creators along with the curators, and creating a kinder, gentler, and vastly more investor-friendly Tumblr in the process.

[Woman at the Window: Auremar via Shutterstock]

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77 Comments

  • Molly Santucci

    Ur an idiot.  please leave the legal advice to lawyers.  A law regarding 'secondary producers' was ruled unconstitutional by a federal court like six years ago.  So STFU with your bogus legal comments.  Ur a retard.

  • Marty

     2257 is not being enforced right now at Tumblr. They are based in NY, not Cyprus or Russia. So what makes you think that it will be enforced now that Yahoo dumped a billion on it. At least it was less money than they spent buying Geocities.

  • Shane Guymon

    I want to know, why is this ONLY a problem for Yahoo. Why wasn't this also already the exact same problem for Tumblr? What changed by Yahoo purchasing Tumblr?

  • Fred Garvin

    What,  you can get free porn on Tumblr?...what the h*ll is a Tumblr anyway? Oh yeah, a place to get free porn. But I thought a Tumblr was an amputated spinner. Oh well, I might actually have to look at this crap.

  • romans920

    I agree with Adam.  It is inaccurate to call daily sex with one's spouse as "repressive."  Drop the porn, and invest in a spouse.  That is an outlet which is in no wise repressive and yet not enslaved to countless videos and pictures of other persons.  Fire is great in the fireplace, call that repressive if you want to, but go beyond the normal bounds and you'll burn your house down.  

  • Faceface

    There could be a chance that anything violating a federal law will invoke punishment not from a criminal stand point but from a tax stand point.  We'll have to see how the donations come and go from Yahoo, and also Karp now that he is in the 0.00001% bracket.

  • Yacob Lieberman

    If the act of procreation is regarded as something undesirable and, thus, named porn, then I'm the Porn Rabbi.

  • Yacob Lieberman

    I don't know why they call it porn.  That is an oxymoron.  I suppose it is because people are so uptight regarding  sex, which translates into other areas of our lives as misunderstandings.  All the frantic activities we view simply lead to procreation, and this we call porn?

  • Guest

    The porn is the best part of Tumblr but don't concern yourselves because money will be the driving force behind and in front of the destruction of Tumblr.

  • David_from_San_Diego

    America has turned into a police state.  Everything is a crime.  John Stossel did a great show on that, which I think was called, "Everything's Illegal".