SF woman countersues porn producer: Says porn is not copyrightable.

[bubbski]

Luixia Wong says that even if she had downloaded porn from a torrent site, there was no copyright infringement because obscene materials cannot be copyrighted.

http://www.courthousenews.com/2012/02/03/43613.htm

[Willie Escalade]

There always seems to be multiple ways to interpret the law...

[MacShreach]

luixia wong says that even if she had downloaded porn from a torrent site, there was no copyright infringement because obscene materials cannot be copyrighted.

http://www.courthousenews.com/2012/02/03/43613.htm

roflmao

All eyes in the porn business will be watching this one LOL. I think the chances are though, that Hard Drive will back down, just because of the massive pressure they must be coming under not from the rest of the porn industry, which absolutely does not want a precedent set that porn cannot be legally protected under copyright.

[shac]

Whilst I think that one should support producers, and I can even speak with a vested interest on this matter, I'm with the Swiss on this one.

Don't allow the a totalitarian American government co-opted by corporate interests to erode the sovereign nation state.

[MacShreach]

Whilst I think that one should support producers, and I can even speak with a vested interest on this matter, I'm with the Swiss on this one.

Don't allow the a totalitarian American government co-opted by corporate interests to erode the sovereign nation state.

Hi. Could you bring us up to speed on that reference to the Swiss please--I must have missed this.

Seconded on your major point. The thing is, the porn 'industry' has no friends at Gummint level, not in public anyway, and porn producers are riding on the back (sorry) of the efforts made my the mainstream entertainment companies--who will lose no sleep if porn falls out of the net.

Copyright itself is in the Last Chance Saloon, despite all the smoke and mirrors, PR and political brouhaha. Copyright is a print-era concept, which will have to be replaced with something new, and the quicker the better. The major technology companies are now more powerful than the entertainment giants, and they want a free internet. I wonder how things would change, if say, Google bought one of the big players?

[shac]

Under Swiss legislation copyright does not prohibit one acquiring said material for personal use.

As technology changes the market should adapt with it. With the invention of the record it wasn't fair that musicians were put out of business but that's what happened. We're seeing a new paradigm shift and entrepreneurs should adapt with it.

[shac]

And when I look what's happening to Richard O'Dwyer in the UK I lack sympathy for the plight of the film studios, even though that's my industry.

The FBI is acting like a Hollywood goon squad.

[MacShreach]

Under Swiss legislation copyright does not prohibit one acquiring said material for personal use.

As technology changes the market should adapt with it. With the invention of the record it wasn't fair that musicians were put out of business but that's what happened. We're seeing a new paradigm shift and entrepreneurs should adapt with it.

Thanks for that info and seconded on you point. At every point that there has been a shift in the nature of the media there have been winners and losers (think of all the scribes that went out of business when printing presses arrived.) We have turned the corner and as you say, there has been a paradigm shift; the old order has to give way to the new. Unfortunately, rather then being creative, many entrepreneurs are being reactionary and defensive. It won't work; it never has in the past and it won't in the future. Producers of original work deserve to get paid, and a system to do that will be found (otherwise they'll stop, and there will be no content.) But all those A&R guys, record company moguls, movie-company fat cats and, dare I say it, porn industry 'businessmen', the middle-men and women who make their money selling other people's creativity, are going to have to get used to a change in their lifestyle.

They won't be missed.

[MacShreach]

I don't mean to suggest, BTW, that I think the movie industry will vanish; it won't. Cinema revenue will remain a major source of revenue and the companies will try to incorporate techniques that enhance the cinema experience, such as 3-D. Furthermore, millions of people watch movies on TV for absolutely free, and the TV companies pay a fee to the film company. The film industry has never balked at that or suggested it would have to stop. I think part of the problem now is that the film industry thought it could develop a completely new income stream from internet download sales, and this has backfired big time. They need to stop, before they have totally alienated every one of their potential customers, and negotiate a deal with the technology industry that provides a revenue for the industry while allowing legitimate, free access to the content.

Something similar can be said of the music business, though the old system of free radio leading to record sales is less easily translated, probably because the music industry insists on charging a per-song fee for downloads that is unrealistically high, in order to not completely undermine what is left of the physical retail network. On the other hand, live performers are doing better than they ever have, because people will pay for live music.

The porn business has a problem; the monthly subscription for downloadable access model has allowed truly huge amounts of content to be downloaded and it now permeates the worldwide web. They could stop making new porn today and it would still be oozing out of the seems. The efforts of the porn business to stop the flow reminds me of Canute, except of course that he was trying to prove that no man could stem the tide.

Nevertheless, the demand for porn is unrelenting and that means that money will still be made. Already you see performers working for cam sites that pay directly and act as intermediaries between individual perfomers and customers. OK so plenty of that ends up in the public domain but the unique selling point is the immediate interaction between performer and customer--it's live action.

So there are ways forward.

[shac]

I can envision cam sites becoming a huge market once the quality becomes decent.

[MacShreach]

I can envision cam sites becoming a huge market once the quality becomes decent.

I think you're right about that, and it's not so far away. The only people who should fear internet freedom are those whose interests lie in preventing it.

[Bobzz]

I'm a staunch defender of copyright laws, when they serve to protect the legitimate interests of third parties, but that's not what happened here. If you have 15 minutes or so, see where the real problem lies in the enforcement arena and why SOPA and PIPA should pretty much scare us all.. http://www.ted.com/talks/lang/en/defend_our_freedom_to_share_or_why_sopa_is_a_bad_i dea.html

[Stavros]

Thanks for that info and seconded on you point. At every point that there has been a shift in the nature of the media there have been winners and losers (think of all the scribes that went out of business when printing presses arrived.) We have turned the corner and as you say, there has been a paradigm shift; the old order has to give way to the new. Unfortunately, rather then being creative, many entrepreneurs are being reactionary and defensive. It won't work; it never has in the past and it won't in the future. Producers of original work deserve to get paid, and a system to do that will be found (otherwise they'll stop, and there will be no content.) But all those A&R guys, record company moguls, movie-company fat cats and, dare I say it, porn industry 'businessmen', the middle-men and women who make their money selling other people's creativity, are going to have to get used to a change in their lifestyle.
They won't be missed.

Scribes have not gone out of business, but most Scribes went out of business when people learned how to write, the printing press had nothing to with it. Even today with many printing presses and the internet you can travel through the Middle East and Asia and find scribes writing on behalf of people who are illiterate.

The issue here must surely be the definition of obscenity -if, as the judgement says, pornography is obscene and cannot therefore be copyrighted, surely the question is why haven't Hard Drive been prosecuted for obscenity which, as I understand it, is still against the law in the USA? In addition, if this material is obscene, and therefore illegal, doesn't that mean that Ms Wong downloaded obscene material and is therefore liable to prosecution herself? Obviously, someone has to take Hard Drive to court and prove that Amateur Allure Jen is indeed an obscene film. Maybe I am missing some fine legal technicalities here.

[MacShreach]

Scribes have not gone out of business, but most Scribes went out of business when people learned how to write, the printing press had nothing to with it. Even today with many printing presses and the internet you can travel through the Middle East and Asia and find scribes writing on behalf of people who are illiterate.

The issue here must surely be the definition of obscenity -if, as the judgement says, pornography is obscene and cannot therefore be copyrighted, surely the question is why haven't Hard Drive been prosecuted for obscenity which, as I understand it, is still against the law in the USA? In addition, if this material is obscene, and therefore illegal, doesn't that mean that Ms Wong downloaded obscene material and is therefore liable to prosecution herself? Obviously, someone has to take Hard Drive to court and prove that Amateur Allure Jen is indeed an obscene film. Maybe I am missing some fine legal technicalities here.

Read my post again. I did not say that all scribes went out of business, I said 'all the scribes who went out of business' and the simple fact is that prior to printing, the only way that books could be reproduced was by being copied by scribes, a business model that died. Q.E.D.

As for your latter point, I refer you to the Larry Flynt case in which it was established that porn came under the protection of free speech established in the US Constitution. HOWEVER, while the production of porn may be protected under the Constitution, the copyright in it is not, and indeed it is the same Constitution that is being used in this case to attack the copyright protection of porn.

Reading is your friend.

[TSPornFan]

Porn does have useful art. It allows people to express their fantasies and sexuality. Why does sex have to be so fucking taboo in the US. Grow Up

[MacShreach]

Porn does have useful art. It allows people to express their fantasies and sexuality. Why does sex have to be so fucking taboo in the US. Grow Up

I doubt very much if this will go to court, because the porn company was trying to pull a scam and will probably settle. If it does, I can't wait to read the court transcripts as the defence lawyers try to argue that helping men wank constitutes a 'useful art' LOL.

[Bobzz]

The issue here must surely be the definition of obscenity -if, as the judgement says, pornography is obscene and cannot therefore be copyrighted, surely the question is why haven't Hard Drive been prosecuted for obscenity which, as I understand it, is still against the law in the USA? In addition, if this material is obscene, and therefore illegal, doesn't that mean that Ms Wong downloaded obscene material and is therefore liable to prosecution herself? Obviously, someone has to take Hard Drive to court and prove that Amateur Allure Jen is indeed an obscene film. Maybe I am missing some fine legal technicalities here.

The issue here more correctly stated is copyright... both the statute 17 U.S.C 101 et seq. and the history of judicial interpretation of the statute makes it abundantly clear that so long as the subject matter of copyright meets the statutory requirements, the work is subject to copyright protection.

17 U.S.C. 102 states in pertinent part "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ...


(6) motion pictures and other audiovisual works;"

The Supreme Court long ago in essence stated that they were not about to make decisions of whether some art was more protectible because some people preferred it over other art or thought it was better. The issue of obscenity is largely one of state law and community standards but state law cannot preempt federal law. While the "it's not copyrightable because it's obscene" argument may seem appealing to the masses it's a specious and loosing argument. Fortunately, this is not the defendant's only defense but the notoriety of the defense in the context of the case will surely bring to light the gestapo tactics of this and other similarly situated plaintiffs.

[MacShreach]

The issue here more correctly stated is copyright... both the statute 17 U.S.C 101 et seq. and the history of judicial interpretation of the statute makes it abundantly clear that so long as the subject matter of copyright meets the statutory requirements, the work is subject to copyright protection.

17 U.S.C. 102 states in pertinent part "Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories: ...
(6) motion pictures and other audiovisual works;"

The Supreme Court long ago in essence stated that they were not about to make decisions of whether some art was more protectible because some people preferred it over other art or thought it was better. The issue of obscenity is largely one of state law and community standards but state law cannot preempt federal law. While the "it's not copyrightable because it's obscene" argument may seem appealing to the masses it's specious and loosing argument. Fortunately, this is not the defendant's only defense but the notoriety of the defense in the context of the case will surely bring to light the gestapo tactics of this and other similarly situated plaintiffs.

You're right in the first but according to the article referred to by the OP it is not the obsecenity issue that is being used by the plaintiff here, it is the issue of 'useful art'. So strictly, it appears to be the usefulness that the issue hangs on, not the obscenity. However, as I said, I think Hard Drive will run for cover (the porn company is the defendant here, it's a counter-suit) and settle long before it gets to court.

[Bobzz]

You're right in the first but according to the article referred to by the OP it is not the obsecenity issue that is being used by the plaintiff here, it is the issue of 'useful art'. So strictly, it appears to be the usefulness that the issue hangs on, not the obscenity. However, as I said, I think Hard Drive will run for cover (the porn company is the defendant here, it's a counter-suit) and settle long before it gets to court.

I totally understand the "useful arts" issue but that is still, in my opinion, a specious argument. The "useful arts" argument has as its basis Article I, Section 8, Clause 8, also known as the Copyright and Patent Clause, which states:
"The Congress shall have Power ... 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."

You have to carefully parce the language here Progress of Science refers to Authors and respective Writings (the word science here is rooted in the Latin scienter...meaning to know, knowingly, deliberately); useful Arts refers to Inventors and Discoveries. The requirements for both have been largely left to and are dictated by the statutory provisions which determine copyright subject matter 17 USC 101 et seq. and patentable subject matter 35 USC 101 et seq. The threshold for copyright protection has been always been set intentionally low and nobody wants to dictate taste. "De gustibus non est disputandum" as the man said as he bit into a shit sandwich. :)

I agree that Hard Drive will cut and run and will settle; not because they are afraid of their copyrights failing but because how they (and others) go about enforcing their copyrights will come into greater scrutiny and hopefully public outrage.

[bubbski]

Wow! Interesting discussion here, but then again, that's why I lurk on HA!

Well, that...and the occasional .jpg.

[Stavros]

Read my post again. I did not say that all scribes went out of business, I said 'all the scribes who went out of business' and the simple fact is that prior to printing, the only way that books could be reproduced was by being copied by scribes, a business model that died. Q.E.D.

As for your latter point, I refer you to the Larry Flynt case in which it was established that porn came under the protection of free speech established in the US Constitution. HOWEVER, while the production of porn may be protected under the Constitution, the copyright in it is not, and indeed it is the same Constitution that is being used in this case to attack the copyright protection of porn.

Reading is your friend.

Splitting hair really, but neither of us has established a time-frame in which scibes declined and neither you nor I have produced figures to prove it; printing presses -yes; learning to write: also yes.

As for the US law, the fine points being debated are best left to experts; I am not one of them.

[BeardedOne]

This all has a whiff of the Pennsylvania Department of Revenue's push against Fat Jack's over whether or not comic book sales qualified for sales tax. The state's sales tax law stated that, to qualify as a non-taxable item, it had to be a periodical (Published three or more times a year at regularly scheduled intervals), contain art, literature, or items of current events and general interest. The state, in its case against Fat Jack's, tried to say that comic books (Typically published ten to twelve times a year) were not periodicals, did not contain art, did not contain literature (Though that word could have multiple interpretations), or items of current events or general interest.

I don't recall how the case played out (This was a good fifteen or twenty years ago), but the Commonwealth's case was pure and ignorant bluster at the outset.