Why A Case Testing The Theory That Porn Cannot Be Covered By Copyright Could Be Important
from the promoting-what-progress? dept
It really was just a few months ago, that we noted an interesting footnote in a legal ruling, in which a judge speculated briefly on the question of whether or not porn can be covered by copyright. There have been a few courts that have suggested, in fact, that pornography cannot be covered by copyright at all, but it's a legal theory that hasn't been tested much recently. In our comments, many focused on court holdings that said obscene content cannot be subject to copyright -- because it's illegal content, and illegal content has no copyright coverage. However, that was not what the court said. It specifically asked if pornography was even covered by copyright -- and there are at least some legal scholars who have argued that since pornography "cannot reasonably be construed as promoting 'progress'," that it is not subject to copyright law.It appears that at least someone is now testing this theory in court. Liuxia Wong has filed for declaratory judgment against porn company Hard Drive Productions -- who had done a bit of copyright trolling, demanding $3,400 from her for supposedly downloading "Amateur Allure Jen." While Wong denies downloading the film and was then dismissed from the case (along with all the other defendants) once Hard Drive got their names, the company then did attempt to depose her. She has filed the declaratory judgment (embedded below) claiming that she did not infringe... but also claiming that even if she did, porn is not covered by copyright:
Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and discoveries.The argument here is convoluted and unlikely to be a winner, for a variety of reasons. First, the court might not even rule on this particular issue if it doesn't need to. It could dismiss the case or rule on a different reason and just ignore this. But even if it does actually address this issue, I would guess that it would still rule against her on a few grounds. First, she intermingles two separate issues: whether or not the porn itself is illegal (something that the complaint kinda breezes over without much explanation) and whether or not it "promotes the progress."
Thus, copyright is authorized only for works which promote the progress of science and useful arts....
Early circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.
Subsequent non-en banc decisions by the Ninth Circuit failed to follow this prior circuit decision in California.
Given the absence of any subsequent en-banc Ninth Circuit decisions, Supreme Court precedent, or changes in the Constitution that copyright is authorized for works which does not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent.
Hard Drive's work does not promote the progress of science.
Hard Drive's work does not promote the useful arts.
Hard Drive has judicially admitted that its work is adult pornography.
Hard Drive's work depicts obscene material.
Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
Hard Drive's work depicts criminal acts and/or conduct.
Hard Drive's work is not copyrightable.
Without proof that the content is illegal, then they're focusing entirely on the question of whether or not it promotes the progress, and unfortunately, I can't see a court taking on that issue for two reasons, one good and one bad. The "good" reason for not determining whether or not porn promotes the progress is that it would involve a judge determining if a particular piece of content promotes the progress. That's a dangerous slippery slope in which judges become art critics (something that has happened in other cases, but should be a concern here).
The "bad" reason is the Supreme Court's horrific and damaging ruling in the Eldred case nearly a decade ago, in which the Supreme Court effectively stated that the only part of the copyright clause that matters is that Congress has the right to set copyright. That case tested whether or not Congress had exceeded the part of the clause that said "for limited times." The (ridiculous) ruling from the Supreme Court basically said that it was not the court's position to determine what was "limited Times" -- and that was an issue left up to Congress. Thus, if the Court has already said that it won't opine on what qualifies as "for limited Times" it seems unlikely (and ridiculously unfortunate) that it also will not have any opinion one what constitutes promoting the progress of science and the useful arts.
Now, I would argue (and have argued) that this is a huge mistake on the part of the court -- and that it very much is not just within the judicial system's mandate to examine this, but that it is required that it take these issues into account in determining if the laws are constitutional or not. Now, before some accuse me of contradicting what I said two paragraphs up about not wanting judges to be art critics, there's an important distinction here. I do think it's appropriate for courts to determine if the overall law serves to promote the progress -- something that can be done in a variety of ways, including economic studies or by looking at the amount of content being created. What I have trouble with, expressed above, is if a judge is in a position to determine if a particular work, by itself, should get copyright based on whether or not it promotes the progress. This is, I hope, a clear distinction.
So while I think this case is interesting, I highly doubt it will go anywhere at all. If, somehow, amazingly, it does go somewhere and a ruling is made, then it actually could become very interesting. Should some courts actually say that the "promoting the progress" part of the copyright clause is something that the judicial system needs to pay attention to, we might start to see an awful lot of very interesting lawsuits, and even the possibility of the worst part of Eldred getting the boot. I'd give it less than one tenth of one percent of actually happening (perhaps even less than that), but just on the small chance that something does happen, it's worth paying attention to this case.
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Filed Under: copyright, porn, promote the progress
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Does Hollywood promote the progress?
And don't get me started on that rubbish which passes for music these days!
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Re: Does Hollywood promote the progress?
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Re: Re: Does Hollywood promote the progress?
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Re: Re: Does Hollywood promote the progress?
My problem isn't so much music from the last 10-20 years, it's the inane talk and adverts that fill a lot of "music" radio stations. Means I don't listen to much new music so I end up not discovering any. I probably should sign up to something like spotify as I'm sure there's new stuff that I will like. However I'm going through a classical phase at the moment which largely sidesteps the requirement to research new music.
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Re: Does Hollywood promote the progress?
Pic of Sinatra with a snippet of lyrics from The Way You Look Tonight:
With each word your tenderness grows,
Tearing my fear apart
And that laugh that wrinkles your nose,
It touches my foolish heart.
Below that was a pic of Beibs with a snippet of lyrics from Baby:
And I was like baby, baby, baby, oh
Like baby, baby, baby, no
Like baby, baby, baby, oh
I thought you'd always be mine, mine
The caption read: MUSIC w..what HAPPENED!?
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Re: Re: Does Hollywood promote the progress?
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Re: Re: Re: Does Hollywood promote the progress?
Dude, I don't care what kind of music you're a fan of, or if you think all of The Beib's music is gold and Sinatra is absolute crap (no accounting for taste...I hate The Beatles). I was bringing funny supporting documentation to his gross generalization. Go put on your big girl panties and let others have their humor.
If you can't do that, then maybe you should take a look at your life and see where you went wrong.
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Re: Re: Re: Re: Does Hollywood promote the progress?
To use your own post, "maybe you should take a look at your life and see where you went wrong".
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"Experts"
;-P
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Sorry, I have to take issue here. There's no "slippery slope" when you're already at the bottom. The judge already has to become the arbiter of what is legitimate content when judging this pornography. Pornography is real content, and it is wrong to pretend that this would only be a problem if it led down a "slippery slope" to non-pornographic content.
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Otherwise, it's a super interesting argument, not likely to gain any traction. It would turn the courts into arbiters of art ... and they've been down that road before (wasn't Brando's "Last Tango in Paris" called porn?).
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Older English cases
In Glyn v Weston Feature Film (from 1915, so under substantially similar copyright law to now, post-Berne) the work was found not do be protected by copyright due to being "grossly immoral", as it "advocated free love and justified adultery", so there was no infringement (although there was also an issue of 'fair dealing' which back then was much closer to the US's 'fair use' now).
There was also a case from 1826 (pre-Berne), Stockdale v Onwhyn, where a book about a courtesan was also held not to be protected for similar reasons, with one of the judges going as far as to point out that the statute creating what would later be called copyright (the 1710 act) was titled "An Act for the Encouragement of Learning...", and so this work wouldn't be protected.
It will be interesting to see if a US court will apply the same sort of literal and purposive approach to the law here (obviously UK law has changed a lot since 1710, so that issue no longer applies).
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Re: Older English cases
“The Pre-History of Fair Use”, by Matthew Sag (Loyola University Chicago School of Law):
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jurisprudence
That case in consistent with the view that it is ultra vires of the court's authority to deny copyright protection to an "obscene work". As the author says, the courts shouldn't be making those judgment calls. If Congress wanted pron to be excluded from copyright protection they would have stipulated as such.
It isn't like porn is a deviant subculture practiced by a select few in a basement somewhere. It's a huge industry that couldn't possibly escape the gaze of congress (in more ways than one).
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Re: jurisprudence
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There's still a slippery slope thing to watch out for here. I can see a room of old men in robes deciding that video games are not a usefull art for instance. It would be harder to eny these rights to other medium then it would be porn, 'caus it's only the 21st century and our society hasn't gotten over that tabboo yet, but I'm sure there's someone out there waiting to make the case.
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Re:
Contrast Joseph Burstyn v Wilson (1952) against Mutual Film v Industrial Commission of Ohio (1915):
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As an aside...
'by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and discoveries'.
Nowhere does it mention publishers, I wonder how behemoth corporations ended up with the exclusive Right guaranteed to these individuals. Or is this a byproduct of the whole 'Corporations are people' nonsense?
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Re: As an aside...
You didn't read the fine print.
It's part of the original charter of the Worshipful Company of Stationers and Newspaper Makers.
All that business about “Authors”? That's just propaganda put out by lobbyists.
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Re: As an aside...
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Sue for "similar content?"
http://www.techdirt.com/articles/20120204/01440917661/photographer-appeals-ruling-saying-its-n ot-infringement-to-have-vaguely-similar-photos.shtml
Now, I wouldn't call myself an art critic or an expert on the subject of pornography, but isn't it true that a lot (A LOT!) of porn contains similar content?
Let's say porn is covered by copyright. Let's say I produce a pornographic film showing people having sex. (A fairly common theme of porn, as I understand it.)
Now, can I be sued for producing a work that is similar to someone else's work?
"Subject is centered in the frame, legs spread wide...."
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Re: Sue for "similar content?"
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VHS, DVD's, the internet, 3d tv's, mobile phones with media content... Like it or not, these things sold a lot more because of porn.
I'd say these facts obviously show that porn directly promotes progress.
We are mammals and are therefore biologically predetermined to be interested in two things - sex and staying alive. Any product that taps into those interests will always do better than a product that does not.
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My understanding (copypasta from TorrentFreak's board discussing this case):
Throwing this controversial bullet point into the complaint is nothing more than an attention grabber. Yuen would be even more arrogant and detached from reality than Steele & Gang if he would actually believe that this particular claim would fly. Maybe cynical a bit, yes, but still justifiable IMHO: since troll cases are balancing on the edge of legality (yet no doubt being unethical), publicity is much needed for success in crushing trolls.
I already see many publications jumping on the news, emphasizing only a single, somewhat sensational feature, ignoring all the other (valid) claims. Even if this kind of journalism is yellowish, it is useful as it indirectly turns a lot of public attention to trolls' "business".
Trolls' success is based on ignorance. If a victim receives a scary letter and he is not capable of digging the answers for his questions, the likelihood of him settling is great.
If he is capable of independent thinking and can do a quick research, he will learn and understand what's really going on, and 99% won't settle.
Now if the knowledge about this type of lawsuits becomes widespread, even a victim from the former category will say: "wait a minute, I heard about this, and as far as I remember these guys are scammers, and some good lawyers are suing them": the likelihood of him settling diminishes dramatically, hence trolling becomes less lucrative.
So, getting back to the initial point: yes, it's a bit cynical, but means justify the goal in this case 100%. I personally would justify much more questionable means to stop this legal plague.
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While it not being copyrightable is an aspect they are pursing, the rest of the filing is fascinating.
While it would be neat to see a court rule porn isn't entitled to copyright protection, I think the deeper issue here is scaring the crap out of the trolls.
They used questionable tactics to arrive on her door step, and then proceeded to leave her in a catch 22 situation where to prove your innocent will cost more than the easy settlement. Of course they leave out the part where you will never actually have to get a lawyer to appear in court, because to take someone who has not admitted guilt into a courtroom in one of these cases opens up Pandoras box about their methods and tactics.
I think the courts would be interested to know that this type of IP gathering tech once claimed that a laser printer was sharing the movie the Matrix, and in a repeat of the experiment years later... the printer did it again. And let us not forget the filing in court from Steele's office I covered in my picks of the week... http://www.techdirt.com/articles/20110909/22343015882/that-anonymous-cowards-favorite-techdirt-posts -week.shtml
Where a Steele associate admitted to the Judge that the IP address, despite the claims in the original filing, could not tell them who it was that infringed the copyright so they needed a giant fishing expedition into every computing and storage device in the home.
Now we have the other trolls following Randazza's lead into saying that if you pay for the connection you must be responsible even if it was done without your knowledge or consent. These extortionary tactics need to be stopped. It is time that Judges take notice of hundreds of thousands of names turned over to these trolls and so few named cases ever being filed. That the burden to disprove the allegations, which wouldn't hold up to expert examination, is to great. That threats to tell the world that your a porn fiend and talk to the neighbors are not right.
So while the idea that porn isn't copyrightable might not fly, it got the case more eyes on it. It exposes one persons fight against a deck stacked against her, and it might just sink 1 troll.
The real issue is they went out of their way to annoy this lady, and as I once predicted they finally hit someone with enough money and anger to pursue them back.
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This is not a random opportunistic lawsuit. It's a well-calculated attack. And it is uses a similar tactics Soviet Army used in the battle of Berlin (they aligned hundreds of high-output projectors to blind the Nazis.) Only this time publicity is the painful light.
I even dare to suggest that this lawsuit will not cost ms. Wong a penny. Persons like her are in great demand among (tsss...) an army of lawyers who care about the reputation of legal profession, and naturally want to drown those who damage it.
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As for the sensational claim itself... I'm against singling out pornography in terms of copyrightability. Not because I think that all the porno is "useful art", it is not, but delegating the power to decide what's art (or useful art) and what's not to judges is dangerous. Mostly because the border is blurry and abuse is waiting to happen. Being involved in these cases and witnessing gross abuse, I became convinced that copyright is a failed concept (I was not always like that, thanks to trolls, they have converted me!), so answering the question "is the porn copyrightable?" I would say: "No. Like anything else."
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She is willing to take on public embarrassment of an association with porn, rather than just fork over some hush money to avoid the hassle.
She is willing to strike back on multiple fronts and is shining a huge arrow on why these cases are a mockery of the law.
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Progress of fertility, population growth, depravity, what the progress part means?
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If it's legal, then it's progress.
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If it applies to anything then porn is copyrighted if it applies only to useful arts and science than porn needs to be useful for something, what it is useful for other than sexual relief tension?
You don't need to judge the merits of the art in abstract terms you need to find the bottom line the one that make it useful to society, what porn is useful for?
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Re: Re:
What porn is useful for?
As a whole not the individual pieces, what exactly the producing of porn is useful for?
Sexual tension relief?
Once you question that you need to ask what movies and music are useful for too.
Of course they are useful because of economical interests, was that the intended purpose of the law, is that the spirit of it?
I think it is time to refresh our understanding of the underlying principals.
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But I would hate to see someone have to pay $4K for the bittorent of a dirty movie, most of them a of poor quality unless you download a BluRay.
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https://en.wikipedia.org/wiki/Prostitution
Not sure how the act of filming changes the law, but hey I'm all for it. Nothing is illegal now so long as the camera is rolling.
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Is the adult film industry really just a large brothel, and movies are adverts? Content is advertising after all!
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What are the "useful arts?"
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First and foremost, the material in question is not generally considered obscene. Past Attorney Generals have admitted that adult material is generally protected speech, as much as they don't like it. With rule bases such as USC 18 section 2256 and 2257 (record keeping for porn productions) they have gone further to establish that porn is in fact legal.
Obscenity is also on a case by case basic, and as a criminal charge can only be brought by the state. Individuals do not have the right to file a criminal obscenity case.
Obscenity is very hard to establish, and very hard to prosecute. It is a "community standards" thing, and since this case is filed basically in one of the most liberal counties in the county (near San Francisco), it is unlikely that a standard work of adult material would be considered obscene by those definitions.
Essentially, the judge can rule summarily on this one: The material has not been found obscene in a court of law, there are no pending criminal cases that seek to have it declared obscene, so the plaintiff has nothing to work with.
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Second, I agree that this particular argument won't fly, yet it's kind of disappointing (yet predictable) that people don't see the bigger picture beyond this somewhat sensational claim, which is just one of many, and all the other claims have much more merit. Even if judge will rule on this one as you predict (and most likely he will), there are other claims that can't be defeated so easily. And a very weak Gibbs' motion to dismiss shows that this case hit trolls' nerve, which is great news!
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Experiment
Let's explicitly end copyright protection for pornography and see if it stops being produced!
Surely it would be a difficult challenge for Congress (and even big content) to refuse - because if they did it would make them look as if they supported pornography!
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That's not what the Constitution says.
"The Congress shall have power"
and then goes on to enumerate these powers. Coupling the above with Clause 8, it says:
"The Congress shall have power ... To promote the progress of science and useful arts"
and it continues by specifying HOW that will be accomplished:
"by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;"
So, when read in this manner, it only gives Congress the power to grant exclusive rights, not the power to judge which writings or discoveries should get them.
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Re: That's not what the Constitution says.
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Premise is wrong to start with...
Prurient interest or not, the notion of what is or is not obscene has changed dramatically over the years. A simple nude would have been obscene some time ago, and this even varies to the community standard.
As to promoting the useful arts, well what arts do you consider useful? Playboy is porn by most people's view, but it can be argued to contain the same simple nudes which were painted and photographed years back and which enjoy protection.
Photography and videography are art forms. Sure, the subject matter of the average Vivid Video production isn't what you'd call classy or tasteful but it is film making and that's an art form.
The obscenity standard itself is bad policy and any matter of pieces can fall into that category. Fetish takes on many forms.
Elimnate it altogether instead of going after the creators and trying to make connections from them to terrorists (which has been attempted). Rest assured the next "conservative" in the POTUS role will be sure to take action on this issue...you know, for our own good...oh yea and for the children too. :)
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Free Speech Vs Prostitution.
Free Speech is and should continue to be Protected under the 1st ammendment. That includes hyperbolic, exaggerated, obscene, controversial and all manner of speech. (threats of violence are a different. Extortion is ill eagle.)
Pornography is definitely a form of speech. I contend not all forms of speech are copyright-able.
I do not personally believe much of modern copyright law is valid. But lets start from the assumption that it is.
There is a difference between being a pimp and being a inventor. (sub categories include: artist composer engineer designer etc)
I really actually have no problem with sex workers from a legal stand point. (Go Nevada) If someone wants to work as a prostitute more power to you. (I may judge you on moral ground but not legal ones)
Its one thing to be a pimp or hire a pimp, and completely another to make the government a pimp. Using money that can be going to heal impoverished children to enforce copyright law for obscene material.
No one should go to jail or be fined for making or distributing or even selling porn. (I am talking about adults here) But the government should not be a pimp either. Mind your own business. Let pornographers be pornographers. but don't be a pimp.
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