No Copyright for Pornography: A Response to File-Sharing Litigation (2012)

http://www.ipbrief.net/2012/02/16/4803/

by cronjobber • 10 years ago

66 51 10 years ago

bitwize2• 10 years ago

Even if you could build a case on this argument (which is doubtful; the Supreme Court has ruled that despite the "for limited times" clause, Congress can legislate effectively perpetual copyright if it so desires, so I doubt the "promote science and the useful arts" clause will stop Congress from allowing copyright on whatever), it's wrong on its face. Pornography does promote the progress of science and the useful arts. How many times have we heard it observed that the VCR, and later internet video streaming, wouldn't have had the uptake they did if it weren't for porn? VR is about to undergo the same revolution.

mrfregg• 10 years ago

The uptake of those technologies never depended on pornography. VCRs had movies, internet video streaming had services such as YouTube, VR will have gaming. Pornography just happens to be yet another use case, not exactly one that these technologies would otherwise have had lesser uptake because of.

Finnucane• 10 years ago

Then I guess you don't remember the early 1990s when Congress was already freaking out about how much porn was being distributed on this new Internet thingy that most of them had never even tried to use at that point.

But to the main point, excluding porn from copyright protection means going back to the days of prudes using obscenity laws to suppress works they didn't like and requiring their publishers to go to court to defend them (i.e, D.H. Lawrence, James Joyce, William Burroughs, Alan Ginsberg, etc.).

bitwize2• 10 years ago

No, VCRs didn't have movies, at least at first. At a time when porn producers saw a direct-to-viewer distribution channel in the VCR (and a means to avoid the hassle of having to find theaters willing to show their work), the mainstream movie industry saw a threat. MPAA head Jack Valenti delivered his famously tasteless speech stating that the VCR was to the film industry what the Boston Strangler was to the woman home alone. He would go to his grave wishing he could make the VCR illegal; thankfully most of the rest of the industry got a clue and saw the potential of video rental of mainstream movies.

(Fun fact; this is a large part of why VHS won the format wars; at 2 hours an SP VHS tape was long enough to fit a feature-length film of the day on a single cassette. But the victory wasn't so decisive until after Hollywood took interest, well into the VCR's history.)

And video streaming well predated YouTube. Granted, it was a mess of proprietary plugins, RealPlayer, abd/or Windows Media Player. But I'm fairly certain most of the sites doing video streaming before YouTube were porn sites.

amelius• 10 years ago

How many times have we heard it observed that the VCR, and later internet video streaming, wouldn't have had the uptake they did if it weren't for porn?

Porn only played a role in the "format wars", not in the actual technology behind it.

luso_brazilian• 10 years ago

From the article:

The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution.
An argument in favor of refusing copyright protection is the very reason why copyright protection is granted in the first place: it gives incentives for creation.
Allowing copyright protection on pornographic works, then, would only give more incentive for pornographic creations.

That's a losing battle right there.

First because the Supreme Court already affirmed adult entertainment as encompassed by the first amendment.

Second because it is a dangerous precedence to remove legal protections off something based on subjective standards. Today it is for adult entertainment, tomorrow it could very well be (for instance) for political comedy.

venomsnake• 10 years ago

I have seen a lot of stuff in porn that I did not thought possible the human body can take/do ... so I guess it has both scientific and (somewhat)useful arts value.

ue_• 10 years ago

There's also the case of child pornography, which can't be reasonably defended against copyright infringement in countries where it is illegal to even possess. But there are other incentives (money, sharing with your neighbor) which keep it going, which do well enough.

The idea that you can't claim copyright infringement stops new things from being made is a fallacious one.

jonathankoren3• 10 years ago

We already removed legal protections based on subjective standards. Subjective standards is pretty much all of case law. More to the case at hand, there are obscenity cases, not all of which are immediately cast out on first amendment grounds. Specifically, I'm thinking of Max Hardcore's felony obscenity conviction that resulted in a four year prison sentence.[0]

What would be interesting, would be if the Wong didn't just claim that porn isn't useful, and so it isn't copyrightable (which seems like a losing strategy), but rather claimed that the porn in question was criminally obscene, and that the criminal nature of the work rendered the copyright void. Ironically, a successful defense would then potentially open you up to some sort of obscenity trafficking charge. Hoisted on your own petard as it were.

Unfortunately for Wong, this appears to be just run of the mill heterosexual porn, so unlikely to be ruled obscene. So the moral of the story is to download only the really really kinky stuff.

[0] https://en.wikipedia.org/wiki/Max_Hardcore#Prosecutions

isu_programmer2• 10 years ago

> What would be interesting, would be if the Wong didn't just claim that porn isn't useful, and so it isn't copyrightable (which seems like a losing strategy)

Just as a quick aside, the copyright part of U.S. Const art. I, § 8, cl. 8, is actually the phrase 'Science', and not 'the useful Arts.'

Edit: I know the misuse of the 'useful arts' phrase was from the blog post itself, and replied to this post only because it was the first I saw that mentioned that part of the post.

will_brown• 10 years ago

Subjective standards is pretty much all of case law.

Some areas of law are more objective standards - using bright line rules in lieu of balancing tests, but you are correct there is always an element of subjectivity in the application of facts to law no matter the standard.

1st Amendment law is notoriously full of balancing tests, probably best exemplified by Justice Stewart:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

emodendroket4• 10 years ago

Unfortunately for Wong, this appears to be just run of the mill heterosexual porn, so unlikely to be ruled obscene. So the moral of the story is to download only the really really kinky stuff.

Given the community standard stuff I'm not so srue.

monochromatic• 10 years ago

First Amendment protections are very different from copyright protections.

emodendroket4• 10 years ago

Yeah but once you start putting things in these terms it's a short leap to declaring it obscene under the Miller Test, isn't it?

daveFNbuck• 10 years ago

Which is why this would be a dangerous precedent for the kinds of political comedies that rely on copyright protection for their existence. Unfortunately, that's pretty much all the ones that matter.

dozzie• 10 years ago

> The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution.

Hollywood movies don't promote "useful arts" nor "science", so they should be denied copyrightibility as well.

technofiend• 10 years ago

Although I disagree and would argue a movie like Crouching Tiger, Hidden Dragon is very much useful art, I'm also in favor of rolling back the last thirty years of Disney and MPAA-sponsored legislation and restoring copying duration to something reasonable like 30 years and throwing out the DMCA entirely.

emodendroket4• 10 years ago

I think cinema is pretty well established as an art.

Spooky23• 10 years ago

We already went down that path when the Washington Redskins hurt some feels.

anigbrowl4• 10 years ago

whether pornography promotes the progress of science and useful arts

The creation of sexual pleasure is a useful art. People clearly care enough about sex to devote significant parts of their lives to it, and it has major interactions with their health and happiness. Why then should its practice and technique not be fit subjects for art? What is the purpose of music but to supply aural pleasure, or of paintings and sculpture but to supply visual pleasure?

To be sure, pornography of one kind or another may not appeal to people. What of it? Many art works in other media leave me cold or even repulse me. I can cite artists whose work I loathe looking at but yet consider to be extremely high in art value, partly because they make me so uncomfortable. I see no reason for art based on sexual performance to be any different.

I find this whole proposition offensive, designed to devalue the interests, creativity and effort of one group of people in order to maintain the convenience of others - the very definition of oppression. In a broader sense, telling people in general that their sexuality is inherently lacking in worth is little more than a crude bid for psychosocial control by associating a center of bodily excitement and pleasure with feelings of shame and uselessness.

pvg3• 10 years ago

This seems pretty silly - the Copyright Clause gives Congress the power to enact a particular kind of legislation and states the broad purpose of such legislation. It doesn't say every single copyrightable work has to 'promote the Progress of Science and useful Arts'. It doesn't say much about what specifically is a copyrightable work at all.

wtallis• 10 years ago

the Copyright Clause gives Congress the power to enact a particular kind of legislation and states the broad purpose of such legislation.

The phrasing actually grants Congress the power to "promote the Progress of Science and useful Arts", and restricts the means of doing so to the granting of temporary exclusive rights. This is quite different from something like the Second Amendment, where the explanatory text about "A well regulated Militia" doesn't actually modify the meaning of the clause that has legal effect.

pvg3• 10 years ago

Well, I'm no lawyer let alone a constitutional one but the purpose is clearly to enable a particular kind of legislation for a particularly defined purpose. It doesn't say 'every work granted the temporary exclusive rights must promote [...]'.

PeterisP• 10 years ago

It kind of does say what can be a copyrightable work - it does not give Congress the power to enact a particular kind of legislation as Congress wishes; the authority is limited to the purpose listed there - the Congress is allowed to do only the things explicitly listed there; that's how 'rights of government' work, quite opposite from rights of people. It does not say "you can do X in order to, among other things, achieve Y" - the current wording pretty much means "in general, X is prohibited. We'll allow you to do some X because it seems necessary to achieve Y, but not more than that".

Any copyright-style law made for a different purpose is simply not a valid law - the Congress has not been given authority to pass such a law, so even if they did, the law is not binding.

For any generally valid law, if parts of it don't fit the purpose, these parts are not valid law - again, the Congress has not been given authority to do this, so even if they did, that part should not be binding, and when challenged in court, may be contested and rightfully eliminated.

The abilities of government are different from abilities of people - while people, in general, can do anything not explicitly prohibited by law; the government is not allowed to do anything unless there is explicit constitutional permission that mandates that it can do so.

pvg3• 10 years ago

Nothing you've typed leads to the conclusion 'The Copyright Act is unconstitutional because its criteria for what is and isn't a copyrightable work do not provide an ironclad guarantee that every copyrightable work itself promotes the advancement of arts and science'. It isn't what the clause asks.

616c2• 10 years ago

Fun fact, perhaps related, perhaps not, according to IP lawyer relatives cartographers had to traditionally add at least some non-factual content to make it not pure fact, which is not copyrightable. So a fully true map is not in their interest. Can someone with better legal knowledge confirm the truthiness of this anecodte?

Perhaps, and I am terrified to suggest this, this industry will come up with their own answer to that. Haha.

corin_• 10 years ago

https://en.wikipedia.org/wiki/Trap_street#Legal_issues

Fnoord• 10 years ago

Fun fact, perhaps related, perhaps not, according to IP lawyer relatives cartographers had to traditionally add at least some non-factual content to make it not pure fact, which is not copyrightable.

Sounds like an urban myth.

Rather, it functions like a watermark.

Perhaps, and I am terrified to suggest this, this industry will come up with their own answer to that. Haha.

Not really. We know copyright infringement is happening. The current problems the industry has with copyright protection lie in enforcing them.

616c2• 10 years ago

I know it sounds like an urban myth, perhaps why I asked for a lawyer's take. IANALNAP. (IANAL, Nor a Programmer)

ge96• 10 years ago

What about those footprints they embed in a video to prevent re-uploads? Not saying that is a form of copyright... hmm, I should probably read the article.

michaelt• 10 years ago

There should really be a [2012] in the title.

They eventually reached a 'stipulated judgement' that Liuxia Wong had not infringed any copyrights [1] so the case didn't have the chance to remove pornography's copyright protection.

[1] https://dietrolldie.files.wordpress.com/2012/06/stip_judgeme...

lb1lf• 10 years ago

This is as good a time as any to bring along my favourite mathematics professor of all time, Tom Lehrer:

https://www.youtube.com/watch?v=iaHDBL7dVgs

His 'Smut' was written more than 50 years ago, but still resonate with the current debate. :)

vivekd• 10 years ago

I don't have time to read the whole case (much like the authors of the article I suspect), but as a lawyer that whole claim about "using the doctrine of clean hands to deny copyright" sounds fishy to me. Clean hands is an equitable doctrine based on case law (judge made law based on previous decisions), whereas copyright is statutory. You can't use case law and equity to avoid statutory law, that's one of the basis of our system where the legislature as elected by the people have supremacy over the laws.

I suspect what happened was the plaintiff in that case was violating another federal statute preventing the sale of obscene materials in interstate commerce and that's why they couldn't bring their copyright claim, because the were breaking the law and trying to get the court to give them the protection of the law at the same time.

RichardCA• 10 years ago

You have to go back and review the case law from the 70's. The 1972 porn classic "Behind the Green Door" spawned a whole mess of litigation and set precedents that are still cited. That's where Mitchell Bros. Film Group v. Cinema Adult Theater came from.

pluma• 10 years ago

I recall a ruling in Germany that pornography isn't inherently protected by copyright but porn that has some narrative structure around the actual sex scenes being granted protection because of that.

So if it's just literally pointing a camera at people having sex, copyright wouldn't apply (though presumably the right to one's own image would still apply?) but if it's previously established that they're a plumber and a housewife overcome by their passions, it's part of a copyrighted work.

edblarney• 10 years ago

I want to be the lawyer that goes over scripts to determine which porn counts as 'art' and which does not.

"Ok, we have the production approved, we just need to get the script through legal and we're good". Is probably something people say today :)

I have no legal background, but it all seems rather absurd to me. If it's a creative work, then that's it -> it's copyrightable.

anigbrowl4• 10 years ago

That ruling wouldn't stand in the face of a considered attack.

cft• 10 years ago

Pornorgaphy is not intellectual property. So it should not be copyrightable. It doesn't promote "sciences and useful arts"

swiley• 10 years ago

I'd like to see a good definition of "useful arts" then. Would a film based off of "She Kills Monstors" or another similar play fall under your definition of "useful arts"? What about video games?

anigbrowl4• 10 years ago

You know, every time you start an argument with some bald assertion like 'pornography is not intellectual property' you should be willing to answer the question 'why not?' before trying to develop the rest of your argument. I reject your premise, and since you're proposing it without any supporting arguments I'm not going to give any arguments either. It's on you as the person proposing to change things to explain why we should accept your claim, and when you give arguments to support it then I'll happily engage with those and tell you why I disagree.

musesum• 10 years ago

A friend developed a cellular automata engine, 20 years ago. He sampled porn for palette mapping. There was Zero correlation of physical shapes. While the visuals were abstract, the color scheme felt warm and inviting. Did the original material help 'promote the Progress of Science and useful Arts'?

anigbrowl4• 10 years ago

Hell no - you don't get to decide what I find useful. While I'm not very interested in pornogaphy I have a good few friends who are current or former sex workers, and their work is just as deserving of compensation and legal protection as any other kind of work that admits of performance for an interested audience. I'm far more offended by this proposition than by anything I've ever seen in porn.