UK ISPs Are Already Planning To Offer Porn Filters -- So Who Needs New Legislation?

from the isn't-this-how-it's-supposed-to-work? dept

Last week Techdirt wrote about the possible introduction of an "opt-in" license to view porn online in the UK. As we noted then, there is nothing to stop parents from installing their own filters to block access to certain kinds of Web sites now. But it seems that soon, they won't even have to do that:

There’s a report in today’s Sunday Times that ISP TalkTalk is planning to offer an "adult" filter to all its customers. The "HomeSafe" system will, according to the report, block websites that are considered unsuitable for the under-18s. That isn’t just porn, but also includes self-harm, drugs and violence. Other major consumer ISPs, such as BT, are working on their own systems but don’t have them ready yet.

This is precisely how the market is supposed to work: if there is demand for something that is not currently on offer, then businesses will develop new products to meet that demand.

What’s interesting about today’s report, though, is that a spokesman from TalkTalk is quoted as saying that offering filters to new customers has increased customer retention. It seems that their customers do want them, and are more likely to stay with TalkTalk if they’ve got them.

That means that rather than incurring costs for imposing censorship on everyone unless they opt out, as the UK government may require, ISPs could instead make money through reduced churn by giving customers something they want.

As the author of the article quoted above, Mark Goodge, points out:

It also gives the lie to two other common claims made by pro-compulsion campaigners: that ISPs are irresponsible and parents don’t care, and the only solution to both of those is legislation. In reality, a lot of parents do care about what their children are accessing on the Internet, and will choose to use a system which does screen out the worst of it if that option is available. And ISPs are responsive to consumer demand, so they’re choosing to offer that to their customers.

It's particularly ironic that it should be the UK's Conservative Party that is contemplating this move. It generally prides itself on promoting business and minimizing government interference in people's lives; here, it is doing the exact opposite.

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Filed Under: filters, isp, porn, uk
Companies: talktalk

Join The Club: Tumblr Is The Latest Company Sued By Perfect 10

from the good-luck-getting-some-of-that-zero-revenue dept

And here we go again. Perfect 10 likes to describe itself as a porn publisher, but it's become clear that it's real business seems to be about suing internet companies by claiming copyright infringement. It's sued all sorts of companies, using all kinds of bizarre legal arguments, many of which have resulted in losses (and useful precedents), but sometimes sites seem to settle and Perfect 10 just keeps suing. It's latest target is Tumblr, which it has sued for copyright infringement using many of the same old theories it's used before. You would think that Perfect 10's Norman Zada would have at least waited until Tumblr was actually making some revenue before suing, but apparently he couldn't wait.

So how is Perfect 10 trying to get around the DMCA claims? First, by claiming that Tumblr ignored its DMCA notices. If this is true, that certainly would damage Tumblr's DMCA safe harbor claims. Though, it would surprise me if it was true. In many of its other cases, it's later come out that what Perfect 10 claims are legitimate DMCA takedown notices are anything but. In fact, it often appears like Perfect 10 tries to make its DMCA notices almost impossible to comply with -- which, if true, would be one way to make it easier for the company to then sue over failed compliance...

Second, it claims that Tumblr's own employees uploaded Perfect 10 images to "jumpstart" Tumblr's success. Again, if true, those actions would not be covered by the DMCA's safe harbors, but the filing provides little to no support for the claim that this happened. Perhaps it's true, but given Perfect 10's past, it would nice to see some actual evidence there in order to believe the claim, and not think that this might just be a fishing expedition.

Finally, Perfect 10 claims that the fact that Tumblr has a search engine lets people find the infringing pictures. They seem to be arguing that this is part of the contributory infringement claim. I'd imagine that this is based on the fact that part of the reason Rapidshare beat Perfect 10 was the lack of a search engine (and, yes, here is where we note the irony that the US gov't is using the lack of a search engine as proof that Megaupload was clearly illegal -- when that same fact actually helped get Rapidshare deemed legal). Still, Perfect 10 hasn't had much luck getting any actual search engine found liable, so it's unclear why it will suddenly start with Tumblr.

We'll see what other evidence comes out, but, assuming Tumblr's employees did not directly infringe Perfect 10's work and that there is an explanation for the "DMCA notices," one would hope that Tumblr will join many other top internet companies in fighting back against Perfect 10 and (hopefully) create a few more good precedents along the way.

Filed Under: copyright troll, dmca, norman zada, porn, safe harbors
Companies: perfect 10, tumblr

UK Gov't Considering Requiring A 'Porn License' If You Want To Look At Porn Online

from the seriously? dept

We hear this idea pop up every now and again, and I'd thought by now it had been shown to be pointless enough times that no one would seriously consider it again. Apparently, I was wrong. UK Prime Minister David Cameron is considering requiring adults who want to see porn online to "opt-in" by getting what is effectively a "porn license" to surf the sites deemed naughty by the government. Those in the UK government who actually think this is a smart idea might want to talk to their friends Down Under. Australia has toyed with similar ideas in the past, and they've all gone down in embarrassing flames. There was the filter that blocked educational sites, but left plenty of porn available. And there was the filter that took a teenager all of a half hour to crack.

Both of these highlight the key problems with the plan. Once you go down the path of censoring the internet, suddenly very, very big questions are raised about what gets put on the censorship list. It's easy to say "oh, well, porn is blocked," but something countless people (including judges) have struggled with over the years is how to precisely define porn. It's not nearly as easy as many people think. In nearly every case with filters we see a pattern: perfectly legitimate content that almost no one would consider to be porn gets blocked. And tons and tons of "porn" isn't blocked. Second, people will very, very, very quickly figure out how to get around such blocks.

The other issue, which doesn't come up as often, is the sheer ridiculousness of requiring people to effectively announce to the government that they want to view porn. They describe it as an "opt-in," but as I've said in the past, it's really more of a "porn license." People may have all sorts of reasons for looking at porn, but having to tell your government that you want to look at porn seems like a clear attempt to humiliate people for no reason other than that some in the government don't like the fact that others like porn.

If there's concern about kids viewing porn -- often the "think of the children!" justification that we hear -- there's nothing stopping parents from putting in place their own filters (which are likely to be as effective as any national filters). Why go further and try to block things for everyone?

Filed Under: australia, censorship, filtering, porn, uk

Yet Another Judge Slams Copyright Trolls; Warns That Courts Should Not Be Used To 'Bludgeon' People Into Settling

from the down-they-go dept

Reminiscent of the Righthaven cases, where once judges realized what was really happening they quickly started dumping them, it seems that we're reaching the tipping point with porn companies playing the copyright trolling game as well. More and more of the attempts to seek expedited discovery are getting rejected in sternly worded rulings from judges who recognize that the sole purpose of the lawsuit isn't to go to trial, but to get expedited discovery in order to shake people down for cash. The latest such ruling in an increasingly long line comes out of the Eastern District of NY, where judge Gary Brown issued a nice smackdown on copyright trolls. The judge first notes the ridiculousness of relying on IP addresses to identify the individuals, citing a bunch of cases, before noting that an IP address simply does not indicate the "true identity" of the defendant.

In sum, although the complaints state that IP addresses are assigned to “devices” and thus by discovering the individual associated with that IP address will reveal “defendants’ true identity,” this is unlikely to be the case. Most, if not all, of the IP addresses will actually reflect a wireless router or other networking device, meaning that while the ISPs will provide the name of its subscriber, the alleged infringer could be the subscriber, a member of his or her family, an employee, invitee, neighbor or interloper

There are a number of issues specific to the claims of the plaintiff, K-Beech in this case, including its failure to register the copyrights in question, and a weak attempt at lumping in a trademark claim after this came to light. However, what becomes clear pretty quickly is that the judge isn't buying any of this, and sees that it's really just an attempt to use the courts to shake people down. It starts off with the discovery request going far beyond what's necessary to take a case to trial:

However, not all the information sought is required to advance the claim. For example, in addition to names and addresses, plaintiffs seek both the home telephone numbers and email addresses of the putative John Does... information which is clearly not required to proceed with this action. In particular, obtaining the home telephone numbers seems calculated to further plaintiffs’ settlement strategies, discussed above, rather than advancing their claims by allowing them to effect service.

But the larger point is that the court recognizes these kinds of copyright trolling lawsuits as "abusive litigation tactics." While the court notes that it can and should encourage settlements, it also notes that the rules say those settlements should be "just" and it's not clear that's what's happening here:

Our federal court system provides litigants with some of the finest tools available to assist in resolving disputes; the courts should not, however, permit those tools to be used as a bludgeon.

The court then goes on to agree with many other courts in noting that lumping a bunch of defendants together in the same lawsuit is improper joinder, and agrees to only allow discovery on the very first IP address named in each of the lawsuits being considered.

On the whole, there isn't that much different about this ruling from a bunch of other recent rulings, but it's another one to add to the pile, and it gets clearer and clearer every day that the courts are now aware of how trolls are abusing the system, and less and less likely to allow such abuse.

Filed Under: copyright troll, gary brown, ip address, porn, shakedown
Companies: k-beech, righthaven

More Righthaven IP Up For Auction, Including The Name Righthaven

from the sports-and-porn dept

When one of the many judges smacking down Righthaven ordered that the company's intellectual property be auctioned off, we wondered just what that would actually include, since it's not clear whether Righthaven really owns any copyrights, or any intellectual property beyond its own trademarks. The righthaven.com domain name was the first item sold, and now Lara Pearson points us to the news that another selection of Righthaven IP is now up for sale on eBay.

The list itself is pretty amusing, apparently comprised of two porn movies and a selection of newspaper articles about sports (presumably from the Las Vegas Review Journal). Of course, as we noted originally, even though these copyrights are registered in Righthaven's name, it's likely that they aren't actually valid or enforceable, since the whole crux of the Righthaven saga is that many of the rights transfers to the company were shams, so the original copyright holders still control the works. Buying one of these registrations at auction is a way to own a piece of copyright trolling history, but it's probably not going to make you the legal owner of Ebony Amateurs Vegas Edition #10.

Also up for auction is the trademark on the name Righthaven itself. When righthaven.com sold, it was turned into a service offering "hosting with a backbone" in a somewhat ironic use of the domain. I suspect we'll see something similar happen with the Righthaven trademark, since the company's dismal reputation and long list of legal failures makes it a pretty unappealing brand for any purpose other than parody or satire.

Filed Under: auction, copyright, porn
Companies: righthaven

UK Tabloid Known For Publishing Naked Photos Complains About The Harm Of Porn Online

from the that's-what-we-call-hypocrisy dept

Folks who have been online for a while probably recall the infamous Rimm Report from back in 1995, which was the first mainstream attempt to claim that evil "cyberporn" (yes, that's the word they used) was taking over the internet and threatening children everywhere. Of course, that report was based on ridiculously faulty research, but many have sustained this moral panic that online porn simply must be evil. Enter UK tabloid The Daily Mail, who apparently has decided that this is an issue that needs attention, in the form of some moral panic reporting based on a couple of loosely sourced anecdotes. The story appears to be written by the mother of a kid who's going through the initial stages of teenagerdom/puberty, and his mother can't handle it, so she blames the kid's changes on access to porn online.

Martin Robbins, over at the Guardian does a pitch perfect satire in response, mocking The Daily Mail's article. Here's just a snippet:

As an infant, I was exposed to breasts almost every single day. Thirty years later, breasts have taken over my life. Not a day goes by without some stray breast seeping into my consciousness. Occasionally I catch myself glancing at the breasts of my female friends, and I habitually pour milk all over my cornflakes. Worse, breasts have served as a gateway drug for vaginas.

I used to think I was alone, but extensive new research in the form of almost three anecdotes published by the Daily Mail - a seedy gossip website specializing in celebrity erotica, catering to men too old to buy Nuts and too married to run up hard-to-explain credit card charges on proper porn - has revealed the devastating impact that breasts have been having on other young children.

Each tragic case of boob trauma follows the same remarkable pattern. An ordinary little boy approaching his teenage years suddenly starts to change his behaviour: becoming withdrawn and moody and mysteriously growing about six inches in height. Detailed investigation of the child's browser history reveals that the cause is not the rough patch the parents have been going through, a recent change of schools, or puberty; but an addiction to online porn.

Of course, even more amusing is that Robbins goes on to point out that The Daily Mail's moral panic against porn might take on slightly more credibility if the publication wasn't well known for publishing nude photos itself (the links in the next paragraph may be slightly NSFW depending on your work environment):

The Daily Mail makes money from posting pictures of scantily-clad women on the internet. Sometimes these women are topless. Sometimes they are completely naked. Often the images are captioned with breathy descriptions of 'cleavage', 'dangerous curves', 'thigh-skimming' dresses. Sometimes the images are of disturbingly young girls, accompanied with phrases like the infamous "all grown up."

It's only worth a moral panic if it's not about the publication in question making money, it seems. I recognize that the UK tabloid culture involves moral panic articles like the Daily Mail's all too often, but you have to wonder how anyone takes such things seriously when those same publications are publishing naked photos online itself.

Filed Under: porn, rimm report, tabloids, the daily mail, uk

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.

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.

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."

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.

Filed Under: copyright, porn, promote the progress

Court Says That Outing Closeted Gays Through Mass Infringement Lawsuits Not A Big Deal

from the disagree dept

We already, briefly, touched on the recent district court ruling in Massachussetts, in one of Liberty Media's mass infringement cases, covering the tangential legal question of whether or not porn can even be covered by copyright, but the actual legal issues raised in the case are pretty interesting as well.

Marc Randazza, Liberty Media's lawyer on these cases, and I disagree over whether lumping together a bunch of unrelated individuals is proper "joinder." Randazza has argued that many other mass infringement lawyers do this wrong, but his decision to focus on those in a single swarm makes it a more effective argument. In this case, the court certainly bought Marc's argument, and became one of a small number of courts not to throw out most of the Does sued. Though I find it a little disingenuous in that the judge notes a few other cases that have allowed the joinder to stand... but leaves out the many, many cases where all but one of the Does was dismissed from the suit.

One of my issues with this kind of joinder is that the defendants are all unique and may have very different arguments and defenses. It seems inappropriate to lump them all together. The court rejects that, saying that defendants can raise their separate defense later in the case, but that the basic questions of law are identical across the cases.

The bigger issue to me is a different point raised by the defendants in this and many other cases involving gay pornography. For better or worse, one of the fears of many (including myself) is that such cases work even better as a "shakedown" game, because defendants who either are in the closet or are not gay and fear being sued for downloading gay porn are more likely to just pay up to avoid the embarrassment. I raised this issue with Randazza directly, who argues that my argument is actually homophobic, suggesting that there is something wrong with being gay. To be clear: I don't think there's anything at all wrong with being gay, and, in fact, think that those who are gay should be proud and comfortable with that fact. But, I also think one's sexual orientation and preferences are a personal and private matter -- and that bringing them out through a legal process, as part of an effort to put pressure on someone to pay up, is highly questionable (and morally dubious). If someone has made the decision not to "out" themselves, that's their decision.

Unfortunately, the court doesn't buy this argument, and says that the names of defendants should be made public, rather than allowing them to remain anonymous. In fact, the court suggests there's no evidence that Liberty Media intends to use this info to pressure people into paying up:

Unnumbered Doe suggests that Liberty Media sought the public identities of Does 1-38 to coerce pretrial settlements. Unnumbered Doe’s Mot. 7 (“While we cannot know for certain how the Plaintiff intends to proceed . . . the likely course of action is to contact each of the individuals and demand a monetary payment for settlement of the claims in question.”). This allegation is not supported in the motion papers or by Liberty Media’s actions to date. It is purely speculative and not grounds for allowing the moving defendants to proceed anonymously.

I find this part to be the most questionable, seeing as Liberty Media, in the past, has actually been quite active in trying to get people to "settle" to avoid lawsuits -- including its infamous pay us before we even accuse you plan.

Still, the most troubling idea is that the court seems to think that outing someone who does not want to be outed is "mere embarrassment."

Unnumbered Doe further argues that the anonymity of Does 1-38 should be protected because the disclosure of their identities in conjunction with this lawsuit, which involves homosexual pornography, may cause reputational harm and intrusion upon their privacy. Id. Unnumbered Doe asserts that being named as a party to this action amounts to “a public accusation” that the defendants downloaded and viewed homosexual pornography. Id. Doe 15 similarly argues that their public identification in the lawsuit will expose the defendants to “intrusive public scorn.” Doe 15’s Mot. 3.

The potential embarrassment to Does 1-38 of being associated with allegations of infringing hardcore pornography does not constitute an exceptional circumstance that would warrant allowing the defendants to proceed anonymously. As the Superior Court of Massachusetts stated, “mere embarrassment [is] not sufficient to override the strong public interest in disclosure.” Roe, 2011 WL 2342737, at *1. Thus, the potential embarrassment or social stigma that Does 1-38 may face once their identities are released in connection with this lawsuit is not grounds for allowing them to proceed anonymously.

Now, personally, I don't think such a revelation should even be considered "embarrassing," at all. But, I'm not in a position to talk. And, from what we've seen of folks -- especially younger people -- who have had such info exposed against their will to family and friends who might not be accepting, the idea that this is a "mere embarrassment" doesn't seem accurate at all. Such revelations have resulted in suicides. That's not mere embarrassment. Even if we all agree that no one should be embarrassed about their sexual orientation, or even their interest in pornography, to make that decision on those individuals' behalf just seems questionable to me, and fraught with potential trouble.

Filed Under: copyright, embarrassment, gay porn, joinder, outing, porn, shakedown
Companies: liberty media

Court Wonders If Porn Can Even Be Covered By Copyright

from the interesting-legal-questions dept

Following on our story about questions concerning the copyright status of both Debbie Does Dallas and Deepthroat, we're pointed to a copyright lawsuit concerning porn, in which the judge notes that in many parts of the country, it's actually an open question if porn can even be covered by copyright. The case involves Liberty Media, and I'll have another post later about the more pertinent pieces of the lawsuit, but for now, I'll just show the footnote discussing this, in which it's pointed out that there are some doubts about whether porn is eligible for copyright:

It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was "effectively unavailable for pornography" until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of "obscene materials," such as the films at issue there, and rejecting the defendant’s affirmative defense of "unclean hands"). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that "[p]ragmatism further compels a rejection of an obscenity defense" because "obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether"). Compare Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business," holding that the films were "obscene" and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are "obscene" is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008). This issue, however, is not presently before the Court and the Court expresses no opinion on it here.

My guess, to be honest, is that most courts would find that porn can, in fact, be covered by copyright. The fact that the copyright act makes no statement either way tends to lean towards it being covered. Furthermore, given the ruling in the Fifth Circuit, and the failure of Congress to then jump in and "correct" it, if that ruling went against Congress' belief, provides evidence that, in general, copyright protection would be considered available for original pornography. That said, it would make for an interesting legal argument in any of the many ongoing copyright troll lawsuits, if someone could come up with compelling legal arguments to the contrary.

Filed Under: copyright, porn

British Historian On Porn And Internet Censorship: North Korea Is Right -- The Internet Is Our Enemy

from the nobody-does-liberty-better-than-totalitarians dept

Timothy Stanley, University of Oxford historian and occasional blogger for The Daily Mail The Daily Telegraph, peers out at the internet (from within the internet) and decides he doesn't like what he sees. The problem? That old moral panicist's standby: pornography.

Over in the UK, British Prime Minister David Cameron has just introduced a rather overextensive anti-porn "crackdown" which forces Britain's four largest ISPs to filter pornographic material unless the user specifically opts in. Acting pretty much at the behest of something called the Mothers' Union, Cameron is also taking on billboards, aggressive advertising, sexualized tween clothing articles and, well, just about anything any concerned parent can dream up, thanks to the brand new Parentport website, where parents can go to file complaints about "any TV programme, advertisement, product or service they feel is inappropriate for children."

Stanley seems to be ok with all of this (as well as its obvious potential for abuse), referring to it as a "modest" proposal. He expresses dismay that so-called "conservative" commentators find this to be "injurious to liberty," while dropping what may very well be the quote of the day:

I am confused as to why such people use the label conservative to describe themselves. The single purpose of conservatism is to protect what is good about the traditional order. The internet is a threat to the traditional order and so it is not our friend. The North Koreans understand that, even if we do not.

At this point, many of us are getting up to open windows and doors and turn on the fans in an effort to diffuse a bit of the irony hanging in the air. Stanley has just used the internet to badmouth the internet. Fair enough. People do this all the time. But to drag North Korea in as some sort of example of The Way Things Should Be Done? It's too much. For a British citizen who writes about politics (often in a dissenting manner) and who travels freely between "London, Oxford and Los Angeles" to refer to a country where dissent and attempting to leave the country are frowned upon (and by "frowned upon," I mean "punished with lengthy imprisonment, torture and death") as being somehow "smarter" is downright incomprehensible. (And deplorable.)

But he's not done yet. Stanley pursues the familiar "gateway" theory. Much like our beloved drug warriors constantly remind us that marijuana is the "gateway drug" through which all drug users pass en route to wasting their lives away in badly lit PSAs, Stanley is here to tell us that pornography is the "gateway," um, "thing" that leads to pedophilia and serial killing.

Internet pornography is an obvious example of how permitting one variety of perversion invariably leads to greater and more terrible crimes. The internet turned pedophilia from a private sin into an organized crime. It put people in touch with each other who would never have otherwise met, allowing them to pool resources and share victims. It gave predators access to kids through forums. It also used mainstream porn as a gateway drug. By introducing younger and younger models into erotica, it blurred the lines between childhood and adulthood. People who previously would never have had access to material by which to test their inclinations were now goaded into more and more depravity ("If you enjoyed that, you'll love this..."). Its the expansiveness of the internet that makes it so ripe for regulating.

If you can fight your way through that paragraph without having your eyes roll out of your head, re-read that last sentence. "Because the internet is big, something should be done." It's nice to know that someone is out there encouraging politicians to grab ahold of something they can't possibly control and make a lot of "thinking about the children" noises until their approval ratings go up.

Porn is definitely evil, though. That much Stanley is sure of:

Nowadays, all a child has to do to access some muck is to log on to the family computer. Within seconds they can see videos of whips, goats, origami and tantric projection - the whole T&A.

In Stanley's mind, Cameron's proposal doesn't go far enough:

I would go one step further and suggest that it's time to give back to local authorities the power to outlaw the sale of pornography altogether.

Why?

Like heroin, porn has been proven to be addictive.

Now porn is no longer marijuana (a.k.a. "the gateway drug"), but rather the destination itself. And that destination is? You guessed it: Murdertown!

On an existential level, pornography objectifies human beings, reducing them to the status of commodities. There is no need to engage with them as real people because the sexual stimulus is entirely one sided. This encourages the viewer to regard the subject as less than human.

Yes yes yes. We picked this concept up over at PETA's porn site. What else?

That objectification has lethal consequences. Porn addiction is a common trait among serial killers. The murderer Ted Bundy detailed his experiences thus: "I would keep looking for more explicit, more graphic kinds of materials ... until you reach the point where the pornography only goes so far. You reach that jumping-off point where you begin to wonder if maybe actually doing it will give you that which is beyond just reading about it or looking at it."

Troubling. Could porn actually lead to pedophilia and serial killing? Given porn's ubiquity on the "under-regulated" internet, you'd think the world would be filled with nothing but murderous pedophiles. Of course, there's no reason to refer to correlation and causation as identical (they're actually fraternal twins), no matter which side of this argument you're on. (That means you too, Stanley.)

So, without a doubt (in Stanley's mind), porn is bad and something draconian needs to be done about it. Unless, of course, you're talking about the good old days of porn when it came (sorry) in magazine form and needed to be smuggled about in paper bags and trenchcoats. Those were the good old innocent days, eh Stanley?

When I was a child, getting access to filth was bloody hard work. The best source was The Daily Sport, a silly old rag that featured saucy stories... All of this contact with nudity was fleeting and furtive. The joy was less in the seeing than the getting.

Oh. I see. When you're nostalgically viewing your mental Kinetoscope (in Rose-Tinted Nostalgia-Vision™), porn was just "dirty magazines" and free of the serial killer training material that is so prevalent today. Boys will be boys, I guess. Except not anymore, apparently, because according to Stanley's back-of-an-envelope calculations (Porn + Internet = Bad) they'll just grow up to torture household pets when not idly sexting naked shots of themselves to their Facebook friends.

Well, Mr. Stanley, no wonder you're behind the Prime Minister's proposal. Anyone who's cool with the ISPs collecting a list of opt-in perverts at the behest of the government and who supports the implementation of a nationwide snitch line to keep people from being offended can most likely read your post with a straight face, somehow missing the irony, hypocrisy and unintentional hilarity its steeped in. I, as a fan of free speech and someone who "frowns upon" [see definition above] handing over control of the internet to various governments entities, cannot.

 

Filed Under: censorship, conservative, filters, historian, internet, porn, timothy stanley, uk