1709 Blog: for all the copyright community

Wednesday, 8 February 2012

How porn-friendly is copyright?

Time to dress
to remain in
copyright paradise?
An interesting case is currently pending before the San Francisco Division of the US District Court for Northern District of California (reports and comments available here and here).
In November last, porn producer Hard Drive filed a complaint for copyright infringement against a single John Doe defendant for sharing copyright-protected adult video Amateur Allure Jen on BitTorrent. Among the nearly 1,500 "Does" was Ms Liuxia Wong, a California resident. 
Before suing them, Hard Drive had sought to settle the action for $3,400, asking potential defendants to act promptly to avoid being named in the lawsuit. In its settlement letter to Ms Wong, Hard Drive had informed her that she was liable for copyright infringement and that she might have had to pay statutory damages up to $150,000.
Eventually, Ms Wong did not settle the action and Hard Drive brought a lawsuit against her and others before the San Francisco Division of the US District Court for Northern District of California.
On 31 January 2012 Ms Wong filed her defence.
Ms Wong claims that she never actually downloaded the film, did not tell anyone else to download it, and did not know anyone was using her internet service to download the video. She also argues that the settlement letter sent to her was designed to coerce her into settling the case despite the absence of any facts supporting liability against her.
In addition - and most interestingly - Ms Wong claims that Amateur Allure Jen is not a copyright-protected work, under 17 USC Sections 101 and following. In particular she claims that, pursuant to the US Constitution's Copyright Clause, copyright is authorised only for works which promote the progress of science and useful arts. Amateur Allure Jen would fail to meet these objectives, in that: 
1) it does not promote the progress of science; 
2) it does not promote the useful arts; 
3) it is admittedly adult pornography; 
4) it depicts obscene material, and 
5) it depicts criminal acts and/or conduct. 
Furthermore, when making the film, Hard Drive violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy. Accordingly, Ms Wong seeks relief as that the court issue an order declaring - inter alia - that she is not liable to Hard Drive for copyright infringement, in that Hard Drive's work is not copyright-protected tout court.
Though traditionally obscenity was not protected by copyright law, recently US courts found otherwise. For instance, in 1979 decision in Mitchells Brothers, the US Court of Appeal for the Fifth Circuit held that
"Congress has concluded that the constitutional purpose of its copyright power ... is best served by allowing all creative works (in a copyrightable format) to be accorded copyright protection regardless of subject matter or content, trusting to the public taste to reward creators of useful works and to deny creators of useless works any reward ... Further, if Congress were receptive to subject matter restrictions on copyright, there are many reasons why it would be unlikely to choose obscenity as one of those restrictions. Obscenity law is a concept not adapted for use as a means for ascertaining whether creative works may be copyrighted. Obscenity as a constitutional doctrine has developed as an effort to create a tolerable compromise between First Amendment considerations and police power. It is an awkward, barely acceptable concept that continues to dog our judicial system and society at large. The purpose underlying the constitutional grant of power to Congress to protect writings is the promotion of original writings, an invitation to creativity. This is an expansive purpose with no stated limitations of taste or governmental acceptability. Such restraints, if imposed, would be antithetical to promotion of creativity. The pursuit of creativity requires freedom to explore into the gray areas, to the cutting edge, and even beyond."
Comments from our readers on how obscene copyright can actually be, are - as usual - very welcome.

6 comments:

Anonymous said...

I understand Germany has a collecting society solely dedicated to collecting royalties for pornographic films. What is not clear is whether it is for performers rights' or author's rights...

Anonymous said...

In Australia, the position appears to be settled by the Full Court's decision in Venus Adult Shops Pty Ltd v Fraserside Holdings Ltd [2006] FCAFC 188, [84] (French and Kiefel JJ), [17] (Finkelstein J): http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/FCAFC/2006/188.html

Francis Davey said...

Well in the UK we have Glyn v Weston Feature Co, on which Jeremy Phillips wrote an article he recently republished online at the IPKAT.

The decision (albeit obiter) in Glyn was that copyright could subsist in obscene material but that the court might not enforce it. The "obscenity" in Glyn was very tame - as Sir Nicholas Brown-Wilkinson put it in Stephens v Avery [1988] Ch 499 it would be the highest "very soft pornography". He agreed that a court would not enforce copyright relating to material which has a "grossly immoral tendency", but he pointed out that there was no general code of sexual morals (as there might have been in 1915 in Glyn's day) to which a judge could properly refer and a judge should not impose their own moral views.

Sending indecent or obscene material via the internet is also illegal contrary to s127 Communications Act 2003. But here, as with the Obscene Publications Act, its unclear what "obscene" means. It is likely to be a moving target. My guess is that much modern pornography is not "obscene" in this sense, though I am not really an expert.

A point that has not - as far as I know - been raised is that it is trite law that a contract for sexual intercourse is unenforceable as a matter of public policy. If that is right, why should the fruits of such a contract (explicit pornography) attract enforceable copyright? Surely the public policy considerations apply equally across into enforcement?

In both the Adams v Media C.A.T and Maricar v Goldeneye cases the copyright works were pornographic (I assume to make it easier to intimidate defendants into paying up). Had the claimants in either case actually allowed the matter to go to trial, an obscenity / public policy defence might have been considered. We shall never know.

Ben said...

And of course Perfect 10 in the USA, described as an 'adult men's magazine' have been leading attempts through the US courts to stop Google and Amazon using 'thumbnail' images it owns - and whilst the US court of Appeals for the Ninth Circuit overturned a District Court ruling granting a preliminary injunction to the claimant, it didn't do so on grounds of obscenity or the like - just on the grounds of fair use and that contributory infringement would not apply! But both the District Court and the appellate court clearly felt that copyright could apply to the subject matter

Perfect 10, Inc. v Amazon.com, Inc. 508 F.3d 1146 (9th Cir. 2007)

Anonymous said...

You might find this of interest:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825946

Anonymous said...

Didn't mean to post anonymously but Google won't let me sign on for some reason. This: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1825946

is my article about pornography and copyright.

Regards,
Ann Bartow