No Copyright for Pornography: A Response to File-Sharing Litigation (2012)
ipbrief.net
ipbrief.net
> 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.
The idea that you can't claim copyright infringement stops new things from being made is a fallacious one.
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.
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.
Also, doesn't the US have international agreements regulating copyright, and couldn't those protections be much more broad than the constitutional protections anyways?
Now, I am not sure how that wikipedia article refutes what I said. If it is because the article refers to U.S. Const, art I, § 8, cl. 8 as the "Copyright Clause", you can also see under the heading "Other Terms" the article refers to that same clause also as the "Copyright and Patent Clause", "Patent and Copyright Clause", "Copyright Clause", "Patent Clause", "Intellectual Property Clause", and the "Progress Clause." Copyright and Patent Clause is probably the best name for it as the clause deals with both subject matters, (I dislike calling it the Intellectual Property clause, because other areas of IP, such as trademark and geographic indicators fall under other clauses).
Additionally, that article actually supports what I said. In the first paragraph under "Effect", the article discusses how "[s]ome terms in the clause are used in archaic meanings, potentially confusing modern readers." Specifically it discusses how "useful Arts" refers to people skilled in manufacturing crafts and not artistic pursuits, and how "Science" addresses general knowledge and not scientific inquiry.
While wikipedia may not be the best source for this, other wikipedia articles may be illustrative on the original meanings of these words, such as the article on the term Useful art itself. (https://en.wikipedia.org/wiki/Useful_art)
But again, the cool thing, is that we can discover this connection ourselves by just looking at the text of the clause. In looking at the clauses construction we can see an A and B pattern being followed. Where A refers to copyrights and B refers to patents. Here is the clause with the A and B pattern annotated.
"To promote the progress of (A) science and (B) useful arts, by securing for limited times to (A) authors and (B) inventors the exclusive right to their respective (A) writings and (B) discoveries;"
Learning this distinction was actually helpful to me in my following coursework, as it helped me understand why in patent law we use phrases like "prior art" and "person of ordinary skill in the art" and why copyright law applies to works outside of creative endeavors, such as scientific journal articles or news articles.
Now, as far as legal effect, these words have very little to do with how we apply the laws of Copyright and Patent. They merely explain the reasons why we empower the federal government with the power to pass laws affecting copyrights and patents. Pass any constitutional challenge that the copyright laws and patent laws are beyond Congress's power, U.S. art I, § 8, cl. 8 is little help in assessing a copyright or patent case.
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."
Given the community standard stuff I'm not so srue.
Hollywood movies don't promote "useful arts" nor "science", so they should be denied copyrightibility as well.
Even the new BOTS act passed yesterday, section 1 includes the similar language preventing actions the same way the DMCA does.
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.
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...
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.).
(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.
Porn only played a role in the "format wars", not in the actual technology behind it.
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.
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.
"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.
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.
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.
https://www.youtube.com/watch?v=iaHDBL7dVgs
His 'Smut' was written more than 50 years ago, but still resonate with the current debate. :)
Perhaps, and I am terrified to suggest this, this industry will come up with their own answer to that. Haha.
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.