
You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists - pdelgallego
http://torrentfreak.com/you-cant-copyright-porn-bittorrent-defendant-insists-120206/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+Torrentfreak+%28Torrentfreak%29
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redthrowaway
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.

~~~
RexRollman
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.

~~~
redthrowaway
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.

~~~
ars
Those things are not obscene.

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

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c4urself
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.”

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

~~~
zbuc
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.

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

~~~
ThaddeusQuay2
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...](http://blog.al.com/spotnews/2011/02/tuscaloosa_county_photographer.html)
(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.

~~~
ugh
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.

~~~
corin_
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.

~~~
ThaddeusQuay2
Please continue. Your comment appears unfinished.

~~~
corin_
Hmm?

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TheHegemon
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.

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femto
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.

~~~
wtvanhest
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.

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ceejayoz
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."

~~~
redthrowaway
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.

~~~
fragsworth
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?

~~~
bad_user
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.

~~~
magicalist
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.

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Jun8
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".

~~~
njharman
copyright is not a "creation" right. It is a use(performance) and distribution
right.

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.

~~~
Jun8
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.

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

On what basis then should it be copyrightable?

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unreal37
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.

------
pax
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?

~~~
cgoddard
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.

~~~
gte910h
I'm neither type of person: However I wouldn't boohoo this weakening of
copyright.

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

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

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Tycho
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.

