4 ms·

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 Un

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 15y ago
Sure, except anything that passes the Miller Test is, by definition, not obscene.
- chimeracoder 15y ago
  Furthermore, 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 ago
    replacing 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 ago
      The 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.
      - recoil 15y ago
        > British system Nitpick, but there's no such thing. You mean the English legal system. Scotland's legal system is completely different (http://en.wikipedia.org/wiki/Scots_law http://en.wikipedia.org/wiki/Scots_law), as is that of Northern Ireland.
        electromagnetic 15y ago
        Actually in Canada the law is inherited from England, Scotland and Ireland and IIRC is up to a judges discretion as to whether the common law applies. This is due to the fact that many of the people originally immigrating to Canada came from Scotland and Ireland.
- tantalor 15y ago
  (from http://en.wikipedia.org/wiki/Miller_test http://en.wikipedia.org/wiki/Miller_test) The Miller test was developed in the 1973 case Miller v. California. It has three parts: * Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, * Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, * Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
  - anigbrowl 15y ago
    She's going to have a hard time arguing that the porn breaches contemporary community standards after choosing San Francisco as the venue for her action. I don't know what 'Amateur allure Jen' depicts but it sounds tame rather than wild and kinky.
- zbuc 15y ago
  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 15y ago
    Child porn, cruelty and (possibly) some kinds of criminal assault, ie material that cannot be produced without unlawfully injuring the subject.
    - ThaddeusQuay2 15y ago
      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 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_photographer.html http://blog.al.com/spotnews/2011/02/tuscaloosa_county_photog... (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.
InclinedPlane 15y ago
It sounds to me like a weak defense. Promoting science and useful arts may be one reason why copyright exists but I don't think it should be taken as the full enumeration of every possible reason for copyright protections. The actual protections affirmed mention only that authors and inventors should be given the exclusive rights to their works, without exclusion based on whether such work is "useful".
- redthrowaway 15y ago
  It should be noted that that's just one part of her case (and she's the plaintiff). The other parts include the defendant harassing her for downloads that supposedly occurred before the film was released, failure on the defendant's part to mitigate damages through the DMCA, the defendant purposefully setting up honeypots to catch infringers (but putting the work out there in the first place in the process), and others. Her claim is not limited to the inadmissibility of porn as copyrightable material.
- nokcha 15y ago
  >without exclusion based on whether such work is "useful" The term "useful Arts" has a specific meaning (see, e.g., http://en.wikipedia.org/wiki/Useful_arts http://en.wikipedia.org/wiki/Useful_arts); likewise, the term "Science", as used in the Copyright Clause, refers not only to what we would call "science" today, but also includes, e.g., literature and the fine arts.
- MBlume 15y ago
  The actual protections are embodied in laws passed by congress. The claim here is that under the constitution, congress had no authority to pass those laws except insofar as they promote science and useful arts.
deleted 15y ago
[deleted]
- njharman 15y ago
  It's very common to both refute the validity of a prosecution at the same time as pleading not-guilty to it.
- kstenerud 15y ago
  That's not the entirety of her defense; just the part that relates to the title of this post. One other thing relating to the title: She asserts that the movie itself is illegal (and thus not copyrightable) due to the company engaging in “solicitation, conspiracy to commit prostitution, pimping and/or pandering,” during its production. Other defenses: - She asserts that the movie in question was officially registered AFTER her alleged infringement. - She contests the assertion that she can be held liable for infringement even if her router was unsecured and someone else carried out the act without her knowledge. - She asserts that the company did not mitigate damages by issuing DMCA takedown notices. - She asserts that the private investigators hired by the company are in violation of various California laws, and that by extension the company is guilty of unclean hands. Really, it's all there in black and white in the article.
  - adgar 15y ago
    > One other thing relating to the title: She asserts that the movie itself is illegal (and thus not copyrightable) due to the company engaging in “solicitation, conspiracy to commit prostitution, pimping and/or pandering,” during its production. This was the only interesting argument in the bunch, and while its success would theoretically get her out of her jam, it would mainly just mean a lot of porn would suddenly be illegal in the US. Which should be the first big red flag as to that particular argument's legitimacy. I know they put every possible argument out... but yeah, it's basically asking for the court to set a new precedent on whether or not particular methods of producing pornography - methods in wide use - are legal. I'm not sure I'm comfortable with some of these methods, actually, though as a layperson I'd have trouble believing they'd be prohibited by any existing laws. But for example, College Rules is this creepy kinda crowdsourcing of amateur college porn... they pay a tiny $10,000 if you send them a porno you make with college students with enough "good footage" to make it on the site. And "good footage" means you have sex, and it means you can't have your face blurred, and they make you sign the documents and send in IDs to do it. And from what I can tell every one that makes the cut has at least 4 different people in it - most have more - so each person is actually doing it for a couple grand. And like... the people talk about the money in the videos to reassure themselves... which is extra creepy, especially when it's really so little money for something like that. I have to think some of these people would never do it if it weren't for student loan debts. I don't know. I watch porn, and think there's some seriously borderline coercion stuff out there that's perfectly legally protected.
ZeroGravitas 15y ago
Could be a useful talking point for reframing copyright as the government-granted subsidy/monopoly right that it actually is. Do you want your government subsidizing and/or promoting the production of porn (or religous texts?)

jarin 15y ago

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

chimeracoder 15y ago
Furthermore, 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 ago
  replacing 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 ago
    The 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.
    - recoil 15y ago
      > British system Nitpick, but there's no such thing. You mean the English legal system. Scotland's legal system is completely different (http://en.wikipedia.org/wiki/Scots_law http://en.wikipedia.org/wiki/Scots_law), as is that of Northern Ireland.
      - electromagnetic 15y ago
        Actually in Canada the law is inherited from England, Scotland and Ireland and IIRC is up to a judges discretion as to whether the common law applies. This is due to the fact that many of the people originally immigrating to Canada came from Scotland and Ireland.
tantalor 15y ago
(from http://en.wikipedia.org/wiki/Miller_test http://en.wikipedia.org/wiki/Miller_test) The Miller test was developed in the 1973 case Miller v. California. It has three parts: * Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest, * Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law, * Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
- anigbrowl 15y ago
  She's going to have a hard time arguing that the porn breaches contemporary community standards after choosing San Francisco as the venue for her action. I don't know what 'Amateur allure Jen' depicts but it sounds tame rather than wild and kinky.
zbuc 15y ago
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 15y ago
  Child porn, cruelty and (possibly) some kinds of criminal assault, ie material that cannot be produced without unlawfully injuring the subject.
  - ThaddeusQuay2 15y ago
    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 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_photographer.html http://blog.al.com/spotnews/2011/02/tuscaloosa_county_photog... (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.

InclinedPlane 15y ago

It sounds to me like a weak defense. Promoting science and useful arts may be one reason why copyright exists but I don't think it should be taken as the full enumeration of every possible reason for copyright protections. The actual protections affirmed mention only that authors and inventors should be given the exclusive rights to their works, without exclusion based on whether such work is "useful".

redthrowaway 15y ago
It should be noted that that's just one part of her case (and she's the plaintiff). The other parts include the defendant harassing her for downloads that supposedly occurred before the film was released, failure on the defendant's part to mitigate damages through the DMCA, the defendant purposefully setting up honeypots to catch infringers (but putting the work out there in the first place in the process), and others. Her claim is not limited to the inadmissibility of porn as copyrightable material.
nokcha 15y ago
>without exclusion based on whether such work is "useful" The term "useful Arts" has a specific meaning (see, e.g., http://en.wikipedia.org/wiki/Useful_arts http://en.wikipedia.org/wiki/Useful_arts); likewise, the term "Science", as used in the Copyright Clause, refers not only to what we would call "science" today, but also includes, e.g., literature and the fine arts.
MBlume 15y ago
The actual protections are embodied in laws passed by congress. The claim here is that under the constitution, congress had no authority to pass those laws except insofar as they promote science and useful arts.

deleted 15y ago

[deleted]

njharman 15y ago
It's very common to both refute the validity of a prosecution at the same time as pleading not-guilty to it.
kstenerud 15y ago
That's not the entirety of her defense; just the part that relates to the title of this post. One other thing relating to the title: She asserts that the movie itself is illegal (and thus not copyrightable) due to the company engaging in “solicitation, conspiracy to commit prostitution, pimping and/or pandering,” during its production. Other defenses: - She asserts that the movie in question was officially registered AFTER her alleged infringement. - She contests the assertion that she can be held liable for infringement even if her router was unsecured and someone else carried out the act without her knowledge. - She asserts that the company did not mitigate damages by issuing DMCA takedown notices. - She asserts that the private investigators hired by the company are in violation of various California laws, and that by extension the company is guilty of unclean hands. Really, it's all there in black and white in the article.
- adgar 15y ago
  > One other thing relating to the title: She asserts that the movie itself is illegal (and thus not copyrightable) due to the company engaging in “solicitation, conspiracy to commit prostitution, pimping and/or pandering,” during its production. This was the only interesting argument in the bunch, and while its success would theoretically get her out of her jam, it would mainly just mean a lot of porn would suddenly be illegal in the US. Which should be the first big red flag as to that particular argument's legitimacy. I know they put every possible argument out... but yeah, it's basically asking for the court to set a new precedent on whether or not particular methods of producing pornography - methods in wide use - are legal. I'm not sure I'm comfortable with some of these methods, actually, though as a layperson I'd have trouble believing they'd be prohibited by any existing laws. But for example, College Rules is this creepy kinda crowdsourcing of amateur college porn... they pay a tiny $10,000 if you send them a porno you make with college students with enough "good footage" to make it on the site. And "good footage" means you have sex, and it means you can't have your face blurred, and they make you sign the documents and send in IDs to do it. And from what I can tell every one that makes the cut has at least 4 different people in it - most have more - so each person is actually doing it for a couple grand. And like... the people talk about the money in the videos to reassure themselves... which is extra creepy, especially when it's really so little money for something like that. I have to think some of these people would never do it if it weren't for student loan debts. I don't know. I watch porn, and think there's some seriously borderline coercion stuff out there that's perfectly legally protected.

ZeroGravitas 15y ago

Could be a useful talking point for reframing copyright as the government-granted subsidy/monopoly right that it actually is. Do you want your government subsidizing and/or promoting the production of porn (or religous texts?)