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

[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/def..._bad_idea.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.