Copyright defendant: Porn may be, um, unprotected

A woman accused of illegally downloading porn strikes back by claiming that it doesn't promote science or useful arts and therefore can't be copyrighted.

Some say that pornography lacks originality. And yet I find myself uplifted by the originality of an argument presented by a woman accused--wrongly, she insists--of illegally downloading the porn oeuvre "Amateur Allure Jen" on BitTorrent. A woman who has decided to fight back.

As Torrent Freak uploads the tale--backed up by a court-filed complaint (see below)--not long ago, an outfit calling itself Hard Drive Productions sued one Liuxia Wong over her alleged illegal download. Hard Drive later allegedly sought to drive a hard bargain by offering to settle its complaint with Wong for a mere $3,400.

The good lady was unimpressed. So she decided to sue, accusing Hard Drive--among other things--of harassment.

How far can the long arm of the porn laws stretch? Chris Matyszczyk/CNET

She also wonders whether Hard Drive could even have a case, arguing as she does that porn cannot be copyrighted.

Wong and her lawyers lean heavily on Article 1, Section 8, Clause 8 of the U.S. Constitution, which empowers 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 question that might trouble some is whether porn promotes the progress of science and the useful arts. I know there are those who believe the arts are never useful and that porn is never scientific. There are also those who believe that porn is not art either, but rather a rote and mundane affair.

In this case, though, the plaintiff cites "early circuit law" in California which "held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright."

Now for those who enjoy word games and/or think being a lawyer is actually fun, there is a little more parsing to be enjoyed. "Porn" is not what you might call a legal term of art. It has no legal definition. So Wong claims that Hard Drive's work "depicts obscene material."

I am not sure what elements of "Amateur Allure Jen" might classify as being obscene. My cursory viewing of its promotional materials suggest that this is a fairly standard movie of its type. Will Wong's lawyers attempt to show that all porn is obscene?

In order to bolster her argument, Wong also offers in the suit that Hard Drive and/or its agents, in order to makes its movies, "violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy."

How she knows this will no doubt fascinate the court. I wonder how far her argument might stretch.

The case is full of fascinating nuances--for example, a failure to use DMCA for takedowns.

Might some legal precedent be set here? Or might both parties still find some way to make up and, um, kiss?

Gov.uscourts.cand.250725.4.0

 

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