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You Can’t Copyright Porn, Harassed BitTorrent Defendant Insists
- ceejayoz 15y agoThat'd be a terrifying precedent to set. "I don't see artistic value in your art, so I can mass produce copies of it."
- sellandb 15y agoThe article doesn't talk about a personal judgement of artistic merit, but rather a previous court ruling (“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.”). Now perhaps that court ruling isn't that much different, but your comment implies a personal judgement of value enabling copyright infringement.
- rcfox 15y agoThat's a self-defeating statement. By copying it, you've acknowledged its value.
- sophacles 15y agoThats a disingenuous reply. "Artistic value" is not the same as "any value". I don't see any "artistic value" in a pile of coal, but that doesn't mean it doesn't have utilitarian value.
- rcfox 15y agoSomeone saw "artistic value" in a bunch of soup cans[0], so I'm not sure that the phrase, "artistic value" has an actual meaning. [0] http://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans http://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans
- femto 15y agoThat's an interesting case to raise in a copyright context. How would have Warhol been treated in today's trademark and copyright law environment? It seems there wasn't a problem in 1964. [1] http://www.lettersofnote.com/2010/07/i-hear-you-like-tomato-soup.html http://www.lettersofnote.com/2010/07/i-hear-you-like-tomato-...
- lbotos 15y agoWe ran an Campbells/Warhol exhibit at my school and all the information that was provided to us was that they had worked well together as he had no "negative impact" for Campbells. I would assume the same would be true today.
- lbotos 15y agoWarhol’s view is encapsulated in the quote ". . . a group of painters have come to the common conclusion that the most banal and even vulgar trappings of modern civilization can, when transposed to canvas, become Art." - A quote from your link I agree that "artistic value" may be a hard defense in court, but the paintings are not about soup. They are about us. The things that we create and our ideas on culture and society. See Duchamp: [http://en.wikipedia.org/wiki/Marcel_Duchamp http://en.wikipedia.org/wiki/Marcel_Duchamp] "The creative act is not performed by the artist alone; the spectator brings the work in contact with the external world by deciphering and interpreting its inner qualifications and thus adds his contribution to the creative act." - Marcel Duchamp
- tikhonj 15y agoNot really: just because I want a copy of something for whatever reason does not mean it has any artistic or scientific value. And porn would be "useful" even with artistic or scientific merit ;)
- burgerbrain 15y ago"That's a self-defeating statement. By copying it, you've acknowledged its value." I've just copied your comment, but I nevertheless think that it is of low value (as evidence against your hypothesis, I present the case of myself copying your low value comment...). Proof by recursion!
- rcfox 15y agoOne could argue that the very fact that you saw fit to copy my statement to present an "impressive" rebuttal proves that my statement was valuable artistically.
- burgerbrain 15y agoI don't believe that the materials used in art need have artistic value of their own.
- Zirro 15y agoThis raised a (silly) question in my head: Does a public comment on the Internet, like the one he made, fall under his copyright thus allowing him to deny you the right to copy it?
- burgerbrain 15y agoTechnically yes, I believe so. I suspect it would be rather hard to win that case however.
- saraid216 15y agoTechnically yes, but your response is fair use because the purpose and character of your response was literally "fair and reasonable criticism" and did not "supersede the use of the original work". Exact same reason parody is cool.
- ars 15y agoWhy technically? Simply yes, unless the website terms and conditions provides otherwise. However his quoting of it would probably fall under fair use, even though he copied all of it.
- redthrowaway 15y agoThe 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.
- fl3tch 15y agoIt's already Constitutionally protected as speech. That's why it's not illegal anywhere in America, even though other "vices" like alcohol are.
- icebraining 15y agoBut speech doesn't necessarily have to be protected by copyright.
- fragsworth 15y agoDeclaring 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 15y agoSeeing 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 15y ago
- alan_cx 15y agoThat's what record companies do, isn't it? Well, OK, they do a bit of marketing to fluff it up a bit, but, you know...
- c4urself 15y agotl;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 15y agoSure, except anything that passes the Miller Test is, by definition, not obscene.
- chimeracoder 15y agoFurthermore, if it were, then you'd just be replacing one offense (copyright infringement) with another (distribution of obscene materials). Not sure whether that's a net benefit - it may depend on the specific circumstances, but it's not exactly what I'd call Plan A as a lawyer.
- mikeryan 15y agoreplacing one offense (copyright infringement) with another (distribution of obscene materials). Except one is a civil matter the other is criminal and currently I don't think there's a ton of DA's interested attempting to prosecute everyone sharing porn on the internet.
- electromagnetic 15y agoThe police are fully within their rights to determine if a law is worth enforcing. Here in Ontario it's still on the books that if you purchase alcohol it has to be taken directly to the property it's going to be stored at. IIRC the law dates back to bootlegging days to prosecute the mafia shipping the alcohol down into the US. This isn't even mentioning the laws still on the books that got inherited from the British system.
- redthrowaway 15y agoThis 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 15y agoWhat'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.
- jarin 15y agoGenerally when determining obscenity the determining factor of the Miller Test is the community standards. When I worked at a porn company, I remember hearing about a case where the defense proved community standards by getting statistics about pay-per-view porn on local cable providers.
- redthrowaway 15y agoSo 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 15y agoThose things are not obscene. What he's saying it that to rise above obscene, porn would/could add extra artistic stuff to it.
- pron 15y agoI don't know. On occasion, "just people fucking" could be quite creative and certainly expressive.
- RexRollman 15y agoI don't know if this will fly but it is an interesting argument to make. I will be watching this one.
- Jun8 15y agoFrom 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".
- nirvana 15y agoIf someone were to claim that it has no value whatsoever, then that would be immediately rebutted by the act of copying it or tormenting it and sharing it with others. Every person who downloads it shows that it has some value- at the very least, to satisfy the curiosity that caused them to download it in the first place, if they were to then immediately discard it.
- pbhjpbhj 15y agoValue is not the test for whether something is a work for copyright purposes.
- njharman 15y agocopyright 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.
- TheHegemon 15y agoThis 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.
- femto 15y agoThe 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 15y agoAre 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.
- zem 15y ago"to be smut, it must be utterly without redeeming social importance" -- tom lehrer, "smut"
- unreal37 15y agoI'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.
- Tycho 15y agoAlthough 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.
- pax 15y agoThis 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 15y agoThere 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 15y agoI'm neither type of person: However I wouldn't boohoo this weakening of copyright.