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.