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From the article: > The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science an

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
- isu_programmer 10y ago
  >> 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.
  - Declanomous 10y ago
    This seems like a really important distinction. Though, the fact that other works can be copyrighted seems like that distinction isn't that important. Also, doesn't the US have international agreements regulating copyright, and couldn't those protections be much more broad than the constitutional protections anyways?
    - marcoperaza 10y ago
      There is no right to copyright; in fact Congress could abolish copyrights altogether tomorrow if it wished. Rather, there is an enumerated power for Congress to create copyright. If one could prove that a certain aspect or application of copyright law falls outside of that enumerated power, then it would be void as Congress had no power to create it in the first place.
      - projektfu 10y ago
        If it weren't specified in the US Constitution then it would devolve to common law and State constitutions because of the elastic clause. The right of copyright was invented before the US Constitution.
  - fjdlwlv 10y ago
    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
monochromatic 10y ago
First Amendment protections are very different from copyright protections.
- deleted 10y ago
  [deleted]
- emodendroket 10y ago
  Yeah but once you start putting things in these terms it's a short leap to declaring it obscene under the Miller Test, isn't it?
- daveFNbuck 10y ago
  Which is why this would be a dangerous precedent for the kinds of political comedies that rely on copyright protection for their existence. Unfortunately, that's pretty much all the ones that matter.
dozzie 10y ago
>> 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. Hollywood movies don't promote "useful arts" nor "science", so they should be denied copyrightibility as well.
- technofiend 10y ago
  Although I disagree and would argue a movie like Crouching Tiger, Hidden Dragon is very much useful art, I'm also in favor of rolling back the last thirty years of Disney and MPAA-sponsored legislation and restoring copying duration to something reasonable like 30 years and throwing out the DMCA entirely.
  - kefka 10y ago
    Good luck with that. Even the new BOTS act passed yesterday, section 1 includes the similar language preventing actions the same way the DMCA does.
- emodendroket 10y ago
  I think cinema is pretty well established as an art.
Spooky23 10y ago
We already went down that path when the Washington Redskins hurt some feels.
anigbrowl 10y ago
whether pornography promotes the progress of science and useful arts The creation of sexual pleasure is a useful art. People clearly care enough about sex to devote significant parts of their lives to it, and it has major interactions with their health and happiness. Why then should its practice and technique not be fit subjects for art? What is the purpose of music but to supply aural pleasure, or of paintings and sculpture but to supply visual pleasure? To be sure, pornography of one kind or another may not appeal to people. What of it? Many art works in other media leave me cold or even repulse me. I can cite artists whose work I loathe looking at but yet consider to be extremely high in art value, partly because they make me so uncomfortable. I see no reason for art based on sexual performance to be any different. I find this whole proposition offensive, designed to devalue the interests, creativity and effort of one group of people in order to maintain the convenience of others - the very definition of oppression. In a broader sense, telling people in general that their sexuality is inherently lacking in worth is little more than a crude bid for psychosocial control by associating a center of bodily excitement and pleasure with feelings of shame and uselessness.

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

isu_programmer 10y ago
>> 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.
- Declanomous 10y ago
  This seems like a really important distinction. Though, the fact that other works can be copyrighted seems like that distinction isn't that important. Also, doesn't the US have international agreements regulating copyright, and couldn't those protections be much more broad than the constitutional protections anyways?
  - marcoperaza 10y ago
    There is no right to copyright; in fact Congress could abolish copyrights altogether tomorrow if it wished. Rather, there is an enumerated power for Congress to create copyright. If one could prove that a certain aspect or application of copyright law falls outside of that enumerated power, then it would be void as Congress had no power to create it in the first place.
    - projektfu 10y ago
      If it weren't specified in the US Constitution then it would devolve to common law and State constitutions because of the elastic clause. The right of copyright was invented before the US Constitution.
- fjdlwlv 10y ago
  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

monochromatic 10y ago

First Amendment protections are very different from copyright protections.

deleted 10y ago
[deleted]
emodendroket 10y ago
Yeah but once you start putting things in these terms it's a short leap to declaring it obscene under the Miller Test, isn't it?
daveFNbuck 10y ago
Which is why this would be a dangerous precedent for the kinds of political comedies that rely on copyright protection for their existence. Unfortunately, that's pretty much all the ones that matter.

dozzie 10y ago

>> 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. Hollywood movies don't promote "useful arts" nor "science", so they should be denied copyrightibility as well.

technofiend 10y ago
Although I disagree and would argue a movie like Crouching Tiger, Hidden Dragon is very much useful art, I'm also in favor of rolling back the last thirty years of Disney and MPAA-sponsored legislation and restoring copying duration to something reasonable like 30 years and throwing out the DMCA entirely.
- kefka 10y ago
  Good luck with that. Even the new BOTS act passed yesterday, section 1 includes the similar language preventing actions the same way the DMCA does.
emodendroket 10y ago
I think cinema is pretty well established as an art.

Spooky23 10y ago

We already went down that path when the Washington Redskins hurt some feels.

anigbrowl 10y ago

whether pornography promotes the progress of science and useful arts The creation of sexual pleasure is a useful art. People clearly care enough about sex to devote significant parts of their lives to it, and it has major interactions with their health and happiness. Why then should its practice and technique not be fit subjects for art? What is the purpose of music but to supply aural pleasure, or of paintings and sculpture but to supply visual pleasure? To be sure, pornography of one kind or another may not appeal to people. What of it? Many art works in other media leave me cold or even repulse me. I can cite artists whose work I loathe looking at but yet consider to be extremely high in art value, partly because they make me so uncomfortable. I see no reason for art based on sexual performance to be any different. I find this whole proposition offensive, designed to devalue the interests, creativity and effort of one group of people in order to maintain the convenience of others - the very definition of oppression. In a broader sense, telling people in general that their sexuality is inherently lacking in worth is little more than a crude bid for psychosocial control by associating a center of bodily excitement and pleasure with feelings of shame and uselessness.