You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists

http://torrentfreak.com/you-cant-copyright-porn-bittorrent-defendant-insists-120206/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Torrentfreak+%28Torrentfreak%29

by pdelgallego • 14 years ago

157 96 14 years ago

torrentfreak.com

ceejayoz• 14 years ago

That'd be a terrifying precedent to set. "I don't see artistic value in your art, so I can mass produce copies of it."

sellandb2• 14 years ago

The article doesn't talk about a personal judgement of artistic merit, but rather a previous court ruling (“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.”). Now perhaps that court ruling isn't that much different, but your comment implies a personal judgement of value enabling copyright infringement.

jevinskie• 14 years ago

Doesn't any definition of "obscene" inherently contain a personal judgement?

rcfox3• 14 years ago

That's a self-defeating statement. By copying it, you've acknowledged its value.

sophacles• 14 years ago

Thats a disingenuous reply. "Artistic value" is not the same as "any value". I don't see any "artistic value" in a pile of coal, but that doesn't mean it doesn't have utilitarian value.

tikhonj• 14 years ago

Not really: just because I want a copy of something for whatever reason does not mean it has any artistic or scientific value. And porn would be "useful" even with artistic or scientific merit ;)

burgerbrain4• 14 years ago

"That's a self-defeating statement. By copying it, you've acknowledged its value."

I've just copied your comment, but I nevertheless think that it is of low value (as evidence against your hypothesis, I present the case of myself copying your low value comment...).

Proof by recursion!

redthrowaway4• 14 years ago

The converse, however, would be to declare porn to be useful art, and thus deserving of the constitutional protections granted thereto. I have my popcorn at the ready.

fl3tch• 14 years ago

It's already Constitutionally protected as speech. That's why it's not illegal anywhere in America, even though other "vices" like alcohol are.

fragsworth• 14 years ago

Declaring pornography to be unprotected by copyright on account of "it is not useful" is an extremely scary proposition to me. The apathetic responses in this discussion are also pretty scary. Try to understand the potential implications here.

People enjoy it - if that is not enough to declare that it is "useful", then what is? How can you define any other forms of entertainment to be "useful"? How far-fetched would it be to eventually declare video games to be not "useful"? Or movies?

pbhjpbhj3• 14 years ago

It's "Useful Arts" and it has a quite distinct meaning from the modern conflation of useful & art.

I implore those commenting to consult a reference source.

alan_cx2• 14 years ago

That's what record companies do, isn't it? Well, OK, they do a bit of marketing to fluff it up a bit, but, you know...

c4urself• 14 years ago

tl;dr; Argument of the defendant is based on:

“Article 1, 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 lawsuit details, adding:

“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.”

jarin2• 14 years ago

Sure, except anything that passes the Miller Test is, by definition, not obscene.

chimeracoder• 14 years ago

Furthermore, if it were, then you'd just be replacing one offense (copyright infringement) with another (distribution of obscene materials).

Not sure whether that's a net benefit - it may depend on the specific circumstances, but it's not exactly what I'd call Plan A as a lawyer.

tantalor• 14 years ago

(from http://en.wikipedia.org/wiki/Miller_test)

The Miller test was developed in the 1973 case Miller v. California. It has three parts:

* Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,

* Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,

* Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

zbuc• 14 years ago

But the point of the Miller Test is to define what obscenity is. If porn isn't obscene, then what is?

I'd say porn pretty clearly fails the Miller Test, with the possibility for argument of works containing elements relating to the prurient interest being granted clemency under the third criterion, that is: someone may argue that a work containing a subsection that may generally be considered "obscene" should not be considered "obscene" on the whole because of its other literary, artistic, political, or scientific qualities.

So this case means that they have to prove that their specific pornography does not meet the 3rd criterion of the Miller Test to classify it as non-obscene.

InclinedPlane• 14 years ago

It sounds to me like a weak defense. Promoting science and useful arts may be one reason why copyright exists but I don't think it should be taken as the full enumeration of every possible reason for copyright protections. The actual protections affirmed mention only that authors and inventors should be given the exclusive rights to their works, without exclusion based on whether such work is "useful".

redthrowaway4• 14 years ago

It should be noted that that's just one part of her case (and she's the plaintiff). The other parts include the defendant harassing her for downloads that supposedly occurred before the film was released, failure on the defendant's part to mitigate damages through the DMCA, the defendant purposefully setting up honeypots to catch infringers (but putting the work out there in the first place in the process), and others. Her claim is not limited to the inadmissibility of porn as copyrightable material.

nokcha2• 14 years ago

>without exclusion based on whether such work is "useful"

The term "useful Arts" has a specific meaning (see, e.g., http://en.wikipedia.org/wiki/Useful_arts); likewise, the term "Science", as used in the Copyright Clause, refers not only to what we would call "science" today, but also includes, e.g., literature and the fine arts.

MBlume• 14 years ago

The actual protections are embodied in laws passed by congress. The claim here is that under the constitution, congress had no authority to pass those laws except insofar as they promote science and useful arts.

ZeroGravitas• 14 years ago

Could be a useful talking point for reframing copyright as the government-granted subsidy/monopoly right that it actually is. Do you want your government subsidizing and/or promoting the production of porn (or religous texts?)

redthrowaway4• 14 years ago

This is actually an incredibly interesting (and cunning) assertion. I hope she takes it all the way, and doesn't accept a settlement from the defendants. Having some case law on this matter would be, at the very least, entertaining. It seems the judge would have to rule either that porn is "useful art", or that it cannot be copyrighted. One little copyright troll may just have inadvertently kicked the proverbial hornets' nest.

RexRollman2• 14 years ago

What's interesting is that while some porn does have artistic elements, a lot of newer porn does not: it is literally just people fucking. In the case of the latter, I think the producers would be hard pressed to argue that anything creative or expressive is taking place.

jarin2• 14 years ago

Generally when determining obscenity the determining factor of the Miller Test is the community standards. When I worked at a porn company, I remember hearing about a case where the defense proved community standards by getting statistics about pay-per-view porn on local cable providers.

redthrowaway4• 14 years ago

So a big-budget knockoff of a Hollywood movie (a la Pirates XXX) would be protected as art, but backroom casting couch wouldn't? Similarly, Star Wars Kid wouldn't be covered, but Tosh's show on it would be?

I'm simply fascinated by the possible ramifications of a court deciding this issue.

pron• 14 years ago

I don't know. On occasion, "just people fucking" could be quite creative and certainly expressive.

Jun83• 14 years ago

I think this issue is much more general than porn (although it does make it more interesting). I can declare: "Writer X's (e.g. X=John Grisham, substitute your own bad writer) novels are worthless, so I can freely share them". This would be ridiculous statement (cf. Grisham's net worth ~ $200M).

alan_cx2• 14 years ago

Could make the same sort of point about music, movies and TV these days. What is the artistic merit of Desperate Housewives, The Transformers, and Britney Spears? Hell, much of that is sold on titillation alone. Sounds like artless porn to me.

roel_v• 14 years ago

No the judge doesn't. The more likely situation is that the constitutional goals of copyright are not an exhaustive list or precondition of properties of a work to be copyrightable. The article says 'early Circuit ruling', meaning at a) it's 'only' a circuit ruling, and b) that it might have been from a long time ago. What is 'useful art'? Are they going to argue that some horror movies aren't copyrightable? Or Justin Bieber songs? This argument is a stretch, I can't see it going far.

_delirium• 14 years ago

In addition, there's quite a bit of leeway with the necessary & proper clause (though that may not be needed here). Since judges determining on a case-by-case basis the usefulness of a specific work is pretty obviously unworkable, the Copyright Clause's grant of power to Congress must include the right to set clear rules on classes of copyrightable works, even if some non-zero percentage of works in that class don't individually promote the progress of science and the useful arts, because that's a necessary activity for Congress to be able to create a workable copyright system. (That's one possible argument, anyway.)

sambeau• 14 years ago

Useful Art is taken to mean "invention" so Porn definitely wouldn't fall there (unless something genuinely new was demonstrated).

anigbrowl6• 14 years ago

It will go nowhere. The Supreme Court narrowed the criteria for obscenity so much in the 1970s that very little material qualifies any more, including 99.9% porn. There is abundant case law on the subject already, but most of it is of only historical interest to first amendment scholars these days.

bilbo0s2• 14 years ago

Obscenity is not in question...Only utility.

You'd be surprised how significant the precision of wording is in law. And I would be surprised if lawyers didn't seek to have this very point litigated.

mynameishere• 14 years ago

Why are so many people conflating non-obscenity and "useful art"? Very odd. It's not obscene (wink, wink, sure whatever) but you would have to delve into the lower reaches of willful stupidity to claim that "Anal Creampies 5" is "useful art" and therefore suitable for copyright protection.

RexRollman2• 14 years ago

I don't know if this will fly but it is an interesting argument to make. I will be watching this one.

Jun83• 14 years ago

From a legal layman's perspective, this should be wrong. For simplicity, let's consider a work of porn that has absolutely no "artistic value" whatsoever (judging this will not be objective, but let us assume we can do it). I unequivocally believe that you should be able to copyright this work, because it's your creation.

The main point here is not whether a work has artistic value but if it has any value at all (if not, nobody cares anyway). You should not be able to say: "You work is not artistic so I'm gonna copy it and torrent it".

nirvana• 14 years ago

If someone were to claim that it has no value whatsoever, then that would be immediately rebutted by the act of copying it or tormenting it and sharing it with others. Every person who downloads it shows that it has some value- at the very least, to satisfy the curiosity that caused them to download it in the first place, if they were to then immediately discard it.

pbhjpbhj3• 14 years ago

Value is not the test for whether something is a work for copyright purposes.

njharman• 14 years ago

copyright is not a "creation" right. It is a use(performance) and distribution right.

It didn't use to be before Sonny Bono Act IRRC (and shouldn't) be automatic. You should have to apply for this monopoly right.

Jun83• 14 years ago

Fully agree that it shouldn't be automatic, that would be too stifling. But you could be able to do it, no creation should be un-copyrightable.

pbhjpbhj3• 14 years ago

Copyright is automatic because the USA joined the Berne convention and harmonised with the rest of the world. If it were not automatic then it would unfairly favour the rich.

nokcha2• 14 years ago

The argument advanced by plaintiff isn't merely that the work lacks artistic value but that the work is "obscene" under Miller v. California, 413 U.S. 15 (1973), which means that it is illegal to distribute said work for sale in or affecting interstate commerce under Title 18 USC § 1465 ("Transportation of obscene matters for sale or distribution") (http://www.law.cornell.edu/uscode/18/1465.shtml). Obscenity is still considered an exception to the protection of the First Amendment. (For clarification, I am not saying that obscenity should not be protected; I am merely reporting the current state of the law under Supreme Court jurisprudence.)

roguecoder• 14 years ago

Except that copyright isn't something the government generally has the right to enforce: it infringes on free speech and and free expression. It is legal because the constitution specifically makes provision for it in certain cases (limited time, though the courts ruled it doesn't have to be a reasonable limited time, and to support science and the useful arts.) In all other cases, copyright laws would be unconstitutional.

Natsu2• 14 years ago

So far the track record of finding copyright laws unconstitutional is not good. Eldred and Golan both lost, and in Golan Ginsburg wrote "some restriction on expression is the inherent and intended effect of every grant of copyright" in the majority opinion.

If you're saying that's not how it should be, I sympathize.

bilbo0s2• 14 years ago

You are arguing the question of value...The Constitutional clause she is referencing is really speaking on 'utility'.

Just a nitpick I know...but I suspect that is the strategy this woman is hoping will get her by.

TheHegemon• 14 years ago

This is pretty interesting to me as I used to work at an adult media company a couple of years ago.

Amazingly, it was one of the best jobs I've ever had. Although the CEO started getting obsessed about 'protecting their copyright'.

It had gotten to a point where they hired a full-time lawyer that spent all his time essentially black-mailing customers much like the lady in this article. They would ask for a settlement upfront of several thousand dollars. Most people paid because they didn't want their name associated with that type of lawsuit and were afraid of the backlash they would receive if their friends or family found out.

This, among other things led to me leaving that company.

femto2• 14 years ago

The Internet needs more of this, that people don't just defend against the copyright lobby, but strike deep into their home territory. Put the copyright lobby on the defensive.

Idea for a startup: a litigation funder against copyright trolls. A copyright troll might say: we can make this case go away if you give us 'y', at which point a litigation funder steps in and says we will make it go away for 'z', where z<y. Basically the business case revolves around diverting settlement funds away from the copyright trolls, and giving the victims some benefit in the form of a discount. The trolls would have to fight back by bringing stronger cases or by competing on price and reducing the settlements demanded, in an effort to make the litigation funder uneconomic. It would be even more profitable if lawmakers could be lobbied to force losing copyright trolls to cover the cost of both sides of the litigation.

A sideline for the litigation funder could be funding the aggressive defence of copyrights on free software in return for a cut of the damages. Part of the trick would be to chose targets that free software authors might be pleased to take down: such as aggressive movie studios.

wtvanhest• 14 years ago

Are you saying the litigation funder simply agrees to fight the case and pay all damages in the loss but if they win they get some % of the original settlement?

That could be interesting, especially if they got very good at defending patent law suits. Most likely after a few cases the patent trolls would simply settle for a lower amount and the litigation funder would pocket the difference.

I know the term startup has different definitions, but to me this is more of a law firm then a startup since it would be very difficult to scale.

zem• 14 years ago

"to be smut, it must be utterly without redeeming social importance" -- tom lehrer, "smut"

unreal37• 14 years ago

I'm not sure if she's saying "you can't copyright porn" exactly. She's saying that particular movie they accused her of downloading is obscene, and you can't copyright obscene materials.

porn != obscene, they have different definitions under law.

Tycho• 14 years ago

Although the Constitution says the stipulation of copyright is 'to promote the Progress of Science and useful Arts,' it does not say that everything copyrighted must further that aim. Seems to me in general it just suggests that by giving people control of their intellectual creations, science and art will benefit.

pax• 14 years ago

This almost looks like a win-win situation. If they win people will be granted the right to freely share porn - which might have a downside[1]. If they lose that would certify porn to promote the progress of science and the useful arts which is both fun and liberating for consumers :)

[1]less porn productions?

cgoddard• 14 years ago

There would definitely be a downside commercially if porn were to be declared uncopyrightable (not that i think it has any chance of happening). Sure there might be amateur free porn that would still be made, but there wouldn't be many production houses that would stay in business if they no longer received profit from the sale of their work.

Many smaller production houses run on extremely tight margins, and after making sure cameramen, models, and everybody else gets paid, there is not much capacity to lose money on distribution and still remain profitable.

You would no doubt seeing at least smaller porn production houses closing. I would hope at least the people who at least believe in the utility of porn enough to distribute it would see this as a bad thing. Anti-pornography crusader types would likely see this as a victory.

gte910h• 14 years ago

I'm neither type of person: However I wouldn't boohoo this weakening of copyright.