
No Copyright for Pornography: A Response to File-Sharing Litigation (2012) - cronjobber
http://www.ipbrief.net/2012/02/16/4803/
======
luso_brazilian
From the article:

 _> 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.

~~~
jonathankoren
We already removed legal protections based on subjective standards. Subjective
standards is pretty much all of case law. More to the case at hand, there are
obscenity cases, not all of which are immediately cast out on first amendment
grounds. Specifically, I'm thinking of Max Hardcore's felony obscenity
conviction that resulted in a four year prison sentence.[0]

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.

[0]
[https://en.wikipedia.org/wiki/Max_Hardcore#Prosecutions](https://en.wikipedia.org/wiki/Max_Hardcore#Prosecutions)

~~~
isu_programmer
>> 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)

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.

~~~
fjdlwlv
Why would you post something so blatantly false and easy to refute?

[https://en.m.wikipedia.org/wiki/Copyright_Clause](https://en.m.wikipedia.org/wiki/Copyright_Clause)

~~~
isu_programmer
This was one of the more interesting things I learned during law school that
can be easily explained without a lot of background knowledge in the U.S.
Copyright and Patent systems.

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](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.

------
michaelt
There should really be a [2012] in the title.

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...](https://dietrolldie.files.wordpress.com/2012/06/stip_judgement_00469ca.pdf)

------
bitwize
Even if you could build a case on this argument (which is doubtful; the
Supreme Court has ruled that despite the "for limited times" clause, Congress
can legislate effectively perpetual copyright if it so desires, so I doubt the
"promote science and the useful arts" clause will stop Congress from allowing
copyright on whatever), it's wrong on its face. Pornography _does_ promote the
progress of science and the useful arts. How many times have we heard it
observed that the VCR, and later internet video streaming, wouldn't have had
the uptake they did if it weren't for porn? VR is about to undergo the same
revolution.

~~~
mrfregg
The uptake of those technologies never depended on pornography. VCRs had
movies, internet video streaming had services such as YouTube, VR will have
gaming. Pornography just happens to be yet another use case, not exactly one
that these technologies would otherwise have had lesser uptake because of.

~~~
bitwize
No, VCRs didn't have movies, at least at first. At a time when porn producers
saw a direct-to-viewer distribution channel in the VCR (and a means to avoid
the hassle of having to find theaters willing to show their work), the
mainstream movie industry saw a threat. MPAA head Jack Valenti delivered his
famously tasteless speech stating that the VCR was to the film industry what
the Boston Strangler was to the woman home alone. He would go to his grave
wishing he could make the VCR illegal; thankfully most of the rest of the
industry got a clue and saw the potential of video rental of mainstream
movies.

(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.

------
vivekd
I don't have time to read the whole case (much like the authors of the article
I suspect), but as a lawyer that whole claim about "using the doctrine of
clean hands to deny copyright" sounds fishy to me. Clean hands is an equitable
doctrine based on case law (judge made law based on previous decisions),
whereas copyright is statutory. You can't use case law and equity to avoid
statutory law, that's one of the basis of our system where the legislature as
elected by the people have supremacy over the laws.

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.

~~~
RichardCA
You have to go back and review the case law from the 70's. The 1972 porn
classic "Behind the Green Door" spawned a whole mess of litigation and set
precedents that are still cited. That's where Mitchell Bros. Film Group v.
Cinema Adult Theater came from.

------
pluma
I recall a ruling in Germany that pornography isn't inherently protected by
copyright but porn that has some narrative structure around the actual sex
scenes being granted protection because of that.

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.

~~~
anigbrowl
That ruling wouldn't stand in the face of a considered attack.

------
pvg
This seems pretty silly - the Copyright Clause gives Congress the power to
enact a particular kind of legislation and states the broad purpose of such
legislation. It doesn't say every single copyrightable work has to 'promote
the Progress of Science and useful Arts'. It doesn't say much about what
specifically is a copyrightable work at all.

~~~
PeterisP
It kind of does say what can be a copyrightable work - it does _not_ give
Congress the power to enact a particular kind of legislation as Congress
wishes; the authority is limited to the purpose listed there - the Congress is
allowed to do _only_ the things explicitly listed there; that's how 'rights of
government' work, quite opposite from rights of people. It does not say "you
can do X in order to, among other things, achieve Y" \- the current wording
pretty much means "in general, X is prohibited. We'll allow you to do some X
because it seems necessary to achieve Y, but not more than that".

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.

~~~
pvg
Nothing you've typed leads to the conclusion 'The Copyright Act is
unconstitutional because its criteria for what is and isn't a copyrightable
work do not provide an ironclad guarantee that every copyrightable work itself
promotes the advancement of arts and science'. It isn't what the clause asks.

------
lb1lf
This is as good a time as any to bring along my favourite mathematics
professor of all time, Tom Lehrer:

[https://www.youtube.com/watch?v=iaHDBL7dVgs](https://www.youtube.com/watch?v=iaHDBL7dVgs)

His 'Smut' was written more than 50 years ago, but still resonate with the
current debate. :)

------
anigbrowl
Hell no - you don't get to decide what I find useful. While I'm not very
interested in pornogaphy I have a good few friends who are current or former
sex workers, and their work is just as deserving of compensation and legal
protection as any other kind of work that admits of performance for an
interested audience. I'm far more offended by this proposition than by
anything I've ever seen in porn.

------
musesum
A friend developed a cellular automata engine, 20 years ago. He sampled porn
for palette mapping. There was Zero correlation of physical shapes. While the
visuals were abstract, the color scheme felt warm and inviting. Did the
original material help 'promote the Progress of Science and useful Arts'?

------
616c
Fun fact, perhaps related, perhaps not, according to IP lawyer relatives
cartographers had to traditionally add at least some non-factual content to
make it not pure fact, which is not copyrightable. So a fully true map is not
in their interest. Can someone with better legal knowledge confirm the
truthiness of this anecodte?

Perhaps, and I am terrified to suggest this, this industry will come up with
their own answer to that. Haha.

~~~
Fnoord
> Fun fact, perhaps related, perhaps not, according to IP lawyer relatives
> cartographers had to traditionally add at least some non-factual content to
> make it not pure fact, which is not copyrightable.

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.

~~~
616c
I know it sounds like an urban myth, perhaps why I asked for a lawyer's take.
IANALNAP. (IANAL, Nor a Programmer)

------
cft
Pornorgaphy is not _intellectual_ property. So it should not be copyrightable.
It doesn't promote "sciences and useful arts"

~~~
anigbrowl
You know, every time you start an argument with some bald assertion like
'pornography is not intellectual property' you should be willing to answer the
question 'why not?' before trying to develop the rest of your argument. I
reject your premise, and since you're proposing it without any supporting
arguments I'm not going to give any arguments either. It's on you as the
person proposing to change things to explain why we should accept your claim,
and when you give arguments to support it then I'll happily engage with those
and tell you why I disagree.

------
ge96
What about those footprints they embed in a video to prevent re-uploads? Not
saying that is a form of copyright... hmm, I should probably read the article.

