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No Copyright for Pornography: A Response to File-Sharing Litigation (2012)

66 points by cronjobber 10y ago

bitwize 10y ago
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 10y ago
  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 10y ago
    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.
  - Finnucane 10y ago
    Then I guess you don't remember the early 1990s when Congress was already freaking out about how much porn was being distributed on this new Internet thingy that most of them had never even tried to use at that point. But to the main point, excluding porn from copyright protection means going back to the days of prudes using obscenity laws to suppress works they didn't like and requiring their publishers to go to court to defend them (i.e, D.H. Lawrence, James Joyce, William Burroughs, Alan Ginsberg, etc.).
- amelius 10y ago
  > 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? Porn only played a role in the "format wars", not in the actual technology behind it.
luso_brazilian 10y ago
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.
- venomsnake 10y ago
  I have seen a lot of stuff in porn that I did not thought possible the human body can take/do ... so I guess it has both scientific and (somewhat)useful arts value.
- ue_ 10y ago
  There's also the case of child pornography, which can't be reasonably defended against copyright infringement in countries where it is illegal to even possess. But there are other incentives (money, sharing with your neighbor) which keep it going, which do well enough. The idea that you can't claim copyright infringement stops new things from being made is a fallacious one.
- jonathankoren 10y ago
  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
pvg 10y ago
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.
- wtallis 10y ago
  > the Copyright Clause gives Congress the power to enact a particular kind of legislation and states the broad purpose of such legislation. The phrasing actually grants Congress the power to "promote the Progress of Science and useful Arts", and restricts the means of doing so to the granting of temporary exclusive rights. This is quite different from something like the Second Amendment, where the explanatory text about "A well regulated Militia" doesn't actually modify the meaning of the clause that has legal effect.
  - pvg 10y ago
    Well, I'm no lawyer let alone a constitutional one but the purpose is clearly to enable a particular kind of legislation for a particularly defined purpose. It doesn't say 'every work granted the temporary exclusive rights must promote [...]'.
- PeterisP 10y ago
  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.
616c 10y ago
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.
- corin_ 10y ago
  https://en.wikipedia.org/wiki/Trap_street#Legal_issues https://en.wikipedia.org/wiki/Trap_street#Legal_issues
- Fnoord 10y ago
  > 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 10y ago
    I know it sounds like an urban myth, perhaps why I asked for a lawyer's take. IANALNAP. (IANAL, Nor a Programmer)
ge96 10y ago
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.
michaelt 10y ago
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_judgement_00469ca.pdf https://dietrolldie.files.wordpress.com/2012/06/stip_judgeme...
lb1lf 10y ago
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. :)
vivekd 10y ago
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 10y ago
  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 10y ago
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.
- edblarney 10y ago
  I want to be the lawyer that goes over scripts to determine which porn counts as 'art' and which does not. "Ok, we have the production approved, we just need to get the script through legal and we're good". Is probably something people say today :) I have no legal background, but it all seems rather absurd to me. If it's a creative work, then that's it -> it's copyrightable.
- anigbrowl 10y ago
  That ruling wouldn't stand in the face of a considered attack.
cft 10y ago
Pornorgaphy is not intellectual property. So it should not be copyrightable. It doesn't promote "sciences and useful arts"
- swiley 10y ago
  I'd like to see a good definition of "useful arts" then. Would a film based off of "She Kills Monstors" or another similar play fall under your definition of "useful arts"? What about video games?
- anigbrowl 10y ago
  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.
- deleted 10y ago
  [deleted]
musesum 10y ago
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'?
anigbrowl 10y ago
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.

66 points by cronjobber 10y ago

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 10y ago
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 10y ago
  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.
- Finnucane 10y ago
  Then I guess you don't remember the early 1990s when Congress was already freaking out about how much porn was being distributed on this new Internet thingy that most of them had never even tried to use at that point. But to the main point, excluding porn from copyright protection means going back to the days of prudes using obscenity laws to suppress works they didn't like and requiring their publishers to go to court to defend them (i.e, D.H. Lawrence, James Joyce, William Burroughs, Alan Ginsberg, etc.).
amelius 10y ago
> 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? Porn only played a role in the "format wars", not in the actual technology behind it.

luso_brazilian 10y ago

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.

venomsnake 10y ago
I have seen a lot of stuff in porn that I did not thought possible the human body can take/do ... so I guess it has both scientific and (somewhat)useful arts value.
ue_ 10y ago
There's also the case of child pornography, which can't be reasonably defended against copyright infringement in countries where it is illegal to even possess. But there are other incentives (money, sharing with your neighbor) which keep it going, which do well enough. The idea that you can't claim copyright infringement stops new things from being made is a fallacious one.
jonathankoren 10y ago
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

pvg 10y ago

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.

wtallis 10y ago
> the Copyright Clause gives Congress the power to enact a particular kind of legislation and states the broad purpose of such legislation. The phrasing actually grants Congress the power to "promote the Progress of Science and useful Arts", and restricts the means of doing so to the granting of temporary exclusive rights. This is quite different from something like the Second Amendment, where the explanatory text about "A well regulated Militia" doesn't actually modify the meaning of the clause that has legal effect.
- pvg 10y ago
  Well, I'm no lawyer let alone a constitutional one but the purpose is clearly to enable a particular kind of legislation for a particularly defined purpose. It doesn't say 'every work granted the temporary exclusive rights must promote [...]'.
PeterisP 10y ago
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.

616c 10y ago

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.

corin_ 10y ago
https://en.wikipedia.org/wiki/Trap_street#Legal_issues https://en.wikipedia.org/wiki/Trap_street#Legal_issues
Fnoord 10y ago
> 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 10y ago
  I know it sounds like an urban myth, perhaps why I asked for a lawyer's take. IANALNAP. (IANAL, Nor a Programmer)

ge96 10y ago

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.

michaelt 10y ago

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_judgement_00469ca.pdf https://dietrolldie.files.wordpress.com/2012/06/stip_judgeme...

lb1lf 10y ago

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. :)

vivekd 10y ago

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 10y ago
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 10y ago

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.

edblarney 10y ago
I want to be the lawyer that goes over scripts to determine which porn counts as 'art' and which does not. "Ok, we have the production approved, we just need to get the script through legal and we're good". Is probably something people say today :) I have no legal background, but it all seems rather absurd to me. If it's a creative work, then that's it -> it's copyrightable.
anigbrowl 10y ago
That ruling wouldn't stand in the face of a considered attack.

cft 10y ago

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

swiley 10y ago
I'd like to see a good definition of "useful arts" then. Would a film based off of "She Kills Monstors" or another similar play fall under your definition of "useful arts"? What about video games?
anigbrowl 10y ago
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.
deleted 10y ago
[deleted]

musesum 10y ago

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'?

anigbrowl 10y ago

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.