You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists | Hacker News Reader

You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists

torrentfreak.com

157 pointspdelgallego102 comments

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.

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.

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.

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.

Those things are not obscene.

What he's saying it that to rise above obscene, porn would/could add extra artistic stuff to it.

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

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).

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.

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.

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.)

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

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.

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.

Not really, as I am a law student and quite interested in first amendment issues. However, the question of whether porn is obscene is at the outer limits of being relevant on HN to begin with, and I'm reluctant to spend a whole afternoon writing an extended argument with citations and so forth. If you're interested in why I think the utility argument is a dead letter, look up the work of Edward De Grazia, a leading legal writer and litigator in this area.

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.

In the legal world, it's not "useful arts" that would be in question, but "science" in this case.

"Useful arts" is in contrast to the "performing arts" and "fine arts" - it refers to practical skills, not what we talk about as art today.

Because a) there is a large body of case law delineating the boundaries of what is copyrightable, and questions of utility (as distinct from obscenity) have been litigated to death already; and b) Wong' argument is that the porn in question is non-copyrightable because it is obscene, rather than because it lacks utility.

Anyway, utility for what? Is entertainment lacking in utility? If so, should music not be copyrightable, since people derive only aesthetic pleasure from it?

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.”

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

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.

replacing one offense (copyright infringement) with another (distribution of obscene materials).

Except one is a civil matter the other is criminal and currently I don't think there's a ton of DA's interested attempting to prosecute everyone sharing porn on the internet.

The police are fully within their rights to determine if a law is worth enforcing. Here in Ontario it's still on the books that if you purchase alcohol it has to be taken directly to the property it's going to be stored at. IIRC the law dates back to bootlegging days to prosecute the mafia shipping the alcohol down into the US. This isn't even mentioning the laws still on the books that got inherited from the British system.

> British system

Nitpick, but there's no such thing. You mean the English legal system. Scotland's legal system is completely different (http://en.wikipedia.org/wiki/Scots_law), as is that of Northern Ireland.

Actually in Canada the law is inherited from England, Scotland and Ireland and IIRC is up to a judges discretion as to whether the common law applies. This is due to the fact that many of the people originally immigrating to Canada came from Scotland and Ireland.

(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.

She's going to have a hard time arguing that the porn breaches contemporary community standards after choosing San Francisco as the venue for her action. I don't know what 'Amateur allure Jen' depicts but it sounds tame rather than wild and kinky.

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.

Child porn, cruelty and (possibly) some kinds of criminal assault, ie material that cannot be produced without unlawfully injuring the subject.

Your comment merely serves to affirm falsehoods which we, as a society, have come to accept without question. There is a good amount of "child porn" which does not injure the subject.

http://news.cnet.com/2100-1030_3-6139524.html (Federal case may redefine child porn)(2006-NOV-30)

http://blog.al.com/spotnews/2011/02/tuscaloosa_county_photog... (Tuscaloosa County photographer sentenced to federal prison in child modeling porn case)(2011-FEB-09)

Both articles are about Jeff Pierson, and his case is just one of several examples that I can give regarding the misuse of child porn laws. What about bestiality? Is it cruel and/or illegal because animals can't give consent? We eat animals much more often than we fuck them, yet we don't care that they can't consent to being killed. What about those "bum fights" videos, where homeless guys are paid to fight each other for our entertainment? Is that "cruel", or "criminal assault", or "unlawful injury"?

I agree that children should be protected, and that animals shouldn't be hurt unnecessarily, but the crux of the matter is that there is a big difference between the act, and the recording of the act. The former is illegal, whereas the latter is just information, which in itself cannot harm, and which should thus not be illegal. The bottom line is that we've been made to believe that there is no difference. There used to be the Iron Curtain, whose purpose was to control people through political ideology. Then we got the Moral Curtain, behind which we still live, and which consists of child porn, bestiality, and all things "obscene". Now we are busy constructing the Copyright Curtain.

I think it’s about time to start Shit HN Says.

Did you really just say that the distribution and ownership of child porn should be legal? I think you just did.

I refuse to argue vile shit like that but I have to tell you that it is indeed vile shit.

HN isn't allowing me to post my intended reply to you, because every time I do, the comment is immediately marked as "dead". Censorship is everywhere.

I was about to read his comment with interest to see what claims could be made... then I realised who wrote it.

I could look up a few of his past comments on an older account of his, but it's surely easier just to link to his personal site and let your assumptions take over from there.

http://thaddeusquay.com/

Literally the only person I have ever found the need to speak negatively off on HN, as opposed to either agreeing or disagreeing with just their opinions.

Please continue. Your comment appears unfinished.

Hmm?

You know, the legal situation is rather more complex than that; you are reading way too much into my one-line general-purpose answer. For example, what I had in mind when I mentioned animal cruelty was not bestiality but the recent outlawing of 'crush videos,' which feature hot-looking girls crushing small animals underfoot, which is apparently a sexual fetish for some people. As it happens, I remembered that there was a law passed about it but forgot that the Supreme Court struck down this law as an abridgment of free speech (see http://www.abajournal.com/news/article/supreme_court_strikes...).

The former is illegal, whereas the latter is just information, which in itself cannot harm, and which should thus not be illegal.

You might feel differently about this if you knew or had previously been a victim of child molestation and there were a small but vigorous industry devoted to trading movies and pictures of the process. It's true that no amount of law enforcement is likely to eradicate the existence of any individual bit of child porn, but one can certainly seek to deter its distribution or possession by imposing harsh penalties for doing so. I cannot agree with you that this is qualitatively neutral as implied by the phrase 'just information'; There is a good argument that the propagation of such material amounts to an ongoing psychological assault upon the original victim.

The law is an inconsistent mess in this area, and I am not saying it is necessarily optimal. For example, if one 17-year-old takes a sexual photo of him/herself and posts it publicly, that would be treated as a type of child pornography in many jurisdictions; the lack of consistency in age-of-consent laws strikes me as an example of regulatory failure, as does the fact that such laws are based on arbitrary numerical threshold rather than any scientific yardstick of biological, psychological, and moral development. In short, I'm not sure that we should be making criminals out of sexually active teenagers who are doing what comes naturally. However, there's a huge difference between horny teens and some other kinds of child porn.

Given the popularity of porn, it seems to me that people have a pretty common use for it - it should fit the idea of being a 'useful art'.

Porn is even referred to as being 'used'. "He uses porn". Fine art isn't referred to this way with respect to consumers. Someone wandering through an art gallery isn't said to "use Rothko" (though another artist may have their influence described this way).

anigbrowl has also pointed out some things that are obscene - actions which intentionally injure others. Rescission departments in insurance agencies are a better example of obscenity than porn.

Where does the Miller test talk about "usefulness"? It speaks of "serious literary, artistic, political or scientific value".

Also realize the First Amendment is not talking about the "utility" of "art". http://en.wikipedia.org/wiki/Useful_arts

Lastly, you really have a tortured definition of "obscene": http://www.merriam-webster.com/dictionary/obscene

By 'tortured definition', do you mean "Perfectly fits section 2c of my linked definition"?

I realize now you are using "injure" as simply, "to offend". It is rare I use, or hear it used, in such a fashion. My apologies.

No, I meant actions intended to actually harm, physically or otherwise. Recission departments exist to intentionally screw people over - you make people pay for a product that you then do you best to squirm your way out of providing. Recission departments are "repulsive by reason of crass disregard of moral or ethical principles"

Given the popularity of porn, I truly think that if you were able to get honest answers out of people (ie no social pressure to answer in a given way), more would have a problem with the existence of recission depts than with the existence of porn.

Oh, I think I understand now. When you say "anigbrowl has also pointed out some things that are obscene - actions which intentionally injure others" you mean:

'here are some actions which are obscene'

rather than 'obscene means actions which intentionally injure others'

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".

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.

>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.

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.

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?)

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.

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.

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.

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."

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.

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

Coming from a single person certainly. Coming from a court though, it would imply the court's judgement which would seem a little bit different.

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

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.

Someone saw "artistic value" in a bunch of soup cans[0], so I'm not sure that the phrase, "artistic value" has an actual meaning.

[0] http://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans

That's an interesting case to raise in a copyright context. How would have Warhol been treated in today's trademark and copyright law environment? It seems there wasn't a problem in 1964.

[1] http://www.lettersofnote.com/2010/07/i-hear-you-like-tomato-...

We ran an Campbells/Warhol exhibit at my school and all the information that was provided to us was that they had worked well together as he had no "negative impact" for Campbells. I would assume the same would be true today.

Warhol’s view is encapsulated in the quote ". . . a group of painters have come to the common conclusion that the most banal and even vulgar trappings of modern civilization can, when transposed to canvas, become Art." - A quote from your link

I agree that "artistic value" may be a hard defense in court, but the paintings are not about soup. They are about us. The things that we create and our ideas on culture and society.

See Duchamp: [http://en.wikipedia.org/wiki/Marcel_Duchamp]

"The creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualifications and thus adds his contribution to the creative act." - Marcel Duchamp

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 ;)

"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!

One could argue that the very fact that you saw fit to copy my statement to present an "impressive" rebuttal proves that my statement was valuable artistically.

I don't believe that the materials used in art need have artistic value of their own.

This raised a (silly) question in my head: Does a public comment on the Internet, like the one he made, fall under his copyright thus allowing him to deny you the right to copy it?

Technically yes, I believe so. I suspect it would be rather hard to win that case however.

Technically yes, but your response is fair use because the purpose and character of your response was literally "fair and reasonable criticism" and did not "supersede the use of the original work".

Exact same reason parody is cool.

Why technically? Simply yes, unless the website terms and conditions provides otherwise.

However his quoting of it would probably fall under fair use, even though he copied all of it.

I only said technically because the case for fair use would be so strong that in practice I doubt I could actually be sued successfully.

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.

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

But speech doesn't necessarily have to be protected by copyright.

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?

Seeing how copyright is being used to undermine people's constitutional rights, I think copyright should be abolished for absolutely all works, not just for porn.

The concept of copyright is broken. We need something new and that doesn't go against the human nature or against people's constitutional rights. We need something that doesn't restrict sharing or freedom of speech.

     How far-fetched would it be to eventually declare video 
     games to be not "useful"? Or movies?

Not as far-fetched as SOPA.

Are you saying that copyright should be abolished in conjunction with replacing it with a new system? Or that abolishing it altogether would be acceptable? I'm not sure I can imagine that transition.

Copyright (and the patent system) are fundamentally broken in the US, but I don't agree that perpetual copyright terms and SOPA follow naturally from any legal copyright system. I'm a believer in limited copyright actually encouraging innovation, and that includes with restrictions on sharing and freedom of speech (eg I publish a book, I don't believe it should be a form of protected speech to then make a copy of that book and distribute it. On the other hand, I also don't believe that should be a felony or that you owe damages of more money than you might make in your lifetime).

Freedom of speech is already restricted in many ways, and not just in ways that a cynic would point out. None of us lives alone on this planet, which implies that we will have to make concessions in systems already without an optimal solution for all parties.

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.

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...

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".

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.

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

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.

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.

Even if it does not promote the progress of science or the useful arts?

On what basis then should it be copyrightable?

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.

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.)

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.

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.

He's not saying he thinks it is unconstitutional. He's saying that the US government can only grant copyright because the copyright clause carved out a right for them to do so, as copyright protections violate free speech and free expression and so without the specific exception provided by the copyright clause, they would have no way of passing copyright law without violating at least the first amendment.

The problem with that is that the Supreme Court doesn't seem to have any problem with that, unfortunately.

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.

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.

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?

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.

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

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

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

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.

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