Can porn be copyrighted? One file-sharing defendant says no

By Matthew Lasar
 
The strange case of Hard Drive Productions versus "anyone that the video company's lawyers suspect of illegally downloading its pornographic movies" has taken a new and interesting twist. One of the nearly 1,500 "Does" being sued for allegedly sharing a Hard Drive film online has resorted to what seems, at first glance, like a novel defense. In addition to her insistence that she never actually downloaded "Amateur Allure Jen," Liuxia Wong of Solano County, California argues that copyright law doesn't even apply to smut clips. They are not copyrightable, and therefore no infringement occurred.

The matter is quite simple, Wong's petition for declaratory relief explains to the federal court in San Francisco. Article I, Section 8, Clause 8 of the US Constitution defines the purpose of copyright: "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."

Notice the words "science" and "useful arts" in the aforementioned sentence? Since when did movies with acronyms like "P.O.V." or "M.I.L.F." qualify as either? Therefore, "copyright is authorized only for works which promote the progress of science and the useful arts," says Wong's lawyer from the firm of Murphy, Pearson, Bradley & Feeney.

"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," the brief also notes, then reiterates the point another seven times:

• 86. Hard Drive's work does not promote the progress of science.
• 87. Hard Drive's work does not promote the useful arts.
• 88. Hard Drive has judicially admitted that its work is adult pornography.
• 89. Hard Drive's work depicts obscene material.
• 90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
• 91. Hard Drive's work depicts criminal acts and/or conduct.
• 92. Hard Drive's work is not copyrightable.

Holy utilitarianism, Batman . . . is this true? Do the language and stated assumptions of the Copyright Act really exempt garden variety smut video from its protections? And if so, how are people being sued in porn file-sharing cases across the country?

Swarm questions

Before we wade too deep into these particular waters, it's worth noting that the great Hard Drive anti-piracy crusade is a fairly dubious affair. Last August, a California judge took a meat-axe to the company's claim that 188 alleged P2P downloaders could be sued together in one filing.

"Even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses 'acted in concert' with all of the others," federal Magistrate Judge Joseph Spero told the anti-piracy team of Steele Hansmeier. "In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case."

Spero then reduced the case to one defendant. Undaunted, Hard Drive lawyers went to a different court in Washington, DC with another 1,500 Does, plus a generous dose of spleen for the advocacy group Electronic Frontier Foundation (EFF).

EFF is "opposed to any effective enforcement and litigation of intellectual property law," explains one of their latest filings. "A radical interest group," the tirade continues, EFF has a mission that is "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights."

But the odd accusations don't help Liuxia Wong. Following her ISP's disclosure of her name, address, and telephone number to Hard Drive's lawyers, Wong received a letter demanding that she settle the action for $3,400 or face a $150,000 lawsuit. In response, she told Hard Drive's attorneys that she did not download the movie in question and that she did not know who did. Her ISP set up her Wi-Fi system, she said. She believed the Hard Drive letter was something of a shakedown.

"Plaintiff is informed and believes, and thereon alleges that Hard Drive knew that plaintiff would incur substantial costs and attorneys' fees if her deposition were to proceed, and used this information to extract a settlement from plaintiff," her attorneys say. They responded by challenging the very core of the case, the copyrights at issue in Hard Drive's films.

So lets take a look at these early California copyright decisions that Murphy, Pearson lawyers say lend credence to their legal case. In correspondence with Ars, they pointed to two.

Black rooks and hotties

In 1867, California's federal circuit court system heard the case of Martinetti v. Maguire. The latter was a playwright who brought suit against the former, in large part because Martinetti's ribald play "The Black Crook" appeared to be little more than a cheap knockoff of Maguire's earlier play "The Black Rook." But a judge overseeing the matter saw little point in pursuing the case much further, because neither production could be construed as a copyrightable work:

Now it cannot be denied that this spectacle of the Black Crook only attracts attention as it panders to a prurient curiousity or an obscene imagination by very questionable exhibitions and attitudes of the female person. True, the lawfulness of such an exhibition depends upon the law of the place where it takes place. But when the author, inventor or proprietor thereof asks the power of this Court to protect him in the exclusive right to make such an exhibition under the copyright act, the matter assumes a very different aspect.

Thus, with a drama "which is grossly indecent, and calculated to corrupt the morals of the people," the judge continued, its exhibition "neither 'promotes the progress of science or useful arts,' but the contrary. The constitution does not authorize the protection of such productions, and it is not to be presumed that congress intended to get beyond its power in this respect to secure their 'authors and inventors the exclusive right' to the use of them."

"Upon this ground," the judge concluded, "I very much doubt whether the spectacle of the Black Crook is entitled to the benefit of copyright, even if it were admitted that it was a 'dramatic composition'."

Then there was the 1898 matter of Broder v. Zeno Mauvais Music Company. In this instance, the rightsholders to a song called "Dora Dean" and the owners of a tune called "Ma Angeline" sued each other for intellectual piracy.

"It is conceded that the melody of the two songs is substantially the same," a circuit judge noted. Both songs may also be considered "colored melodies" and come from "colored gentlemen," he added. From this point of departure, the court launched into a very detailed history of the two tunes, where and how they were composed, and which possibly came first. In the end, however, all this was moot for the judicial panel.

The pertinent question, the opinion explained, was whether the complainants had any grounds for a copyright suit, given a prominent line in the "Dora Dean" song: "She's the hottest thing you ever seen."

"In other words, the question arises whether the use of the word 'hottest' in the connection referred to renders the song morally objectionable," the court said, "musical compositions of an immoral character not being protected by copyright." To bolster this statement of legal fact, the judge cited Martinetti v. Maguire.

"I am of the opinion that the word 'hottest'" has "an indelicate and vulgar meaning and that for that reason the song cannot be protected by copyright," the judge concluded.

Beyond the power of government?

We should not be surprised by the delicacy these courts displayed towards such mild (by our standards) indiscretions. The same attitude also extended to First Amendment law. As late as 1915, in Mutual Film Commission v. State of Ohio, the Supreme Court upheld the power of a state censorship board to regulate movies. Films, the high court concluded:

are mere representations of events, of ideas and sentiments published and known; vivid, useful, and entertaining, no doubt, but, as we have said, capable of evil, having power for it, the greater because of their attractiveness and manner of exhibition. It was this capability and power, and it may be in experience of them, that induced the state of Ohio, in addition to prescribing penalties for immoral exhibitions, as it does in its Criminal Code, to require censorship before exhibition, as it does by the act under review. We cannot regard this as beyond the power of government.

It would not be until the early 1950s that the Supremes would rethink this logic, upholding a movie theater's right to show a film that made light fun of the Catholic Church.

But any legal team today trying to build on early California cases to repel the Hard Drive Productions onslaught will have to explain its way past several crucial, and much more recent, decisions.

The first is that the Supreme Court has of late weighed in on the relationship between copyright infringement disputes and First Amendment concerns. In Eldred v. Ashcroft (2003), the high court shot down a First Amendment challenge by publishers to the Copyright Extension Act of 1998, a law which added an extra two decades of protection to existing works.

"The Copyright Clause and First Amendment were adopted close in time," Justice Ruth Bader Ginsburg argued for the majority. "This proximity indicates that, in the Framers's view, copyright's limited monopolies are compatible with free speech principles. Indeed, copyright's purpose is to promote the creation and publication of free expression."

The Supremes's view that copyright enhances free speech could pose a hazard to any argument suggesting that certain kinds of speech don't deserve protection. But the highest hurdle that Wong v. Hard Drive faces can be found in a second case, the 1979 matter of Mitchell Brothers v. Cinema Adult Theater.

A dangerous undertaking

In that legal affair, a movie theater not affiliated with the Mitchell Brothers's then-famous adult operation began exhibiting one of the duo's most noted X-rated films, Behind the Green Door. When Mitchell Brothers lawyers sued, a lower court agreed with Cinema Adult Theater's contention that the movie was obscene, thus the "unclean hands" doctrine barred the porn flick makers from collecting damages. (The "unclean hands" principle requires plaintiffs to be free from wrongdoing themselves when filing suit.)

But the Fifth Circuit Court of Appeals saw the matter very differently. For the appeals court panel in question, the Copyright Act's phrase "to promote the Progress of Science and useful Arts" was best served by letting the public decide which works met these goals, trusting the public to favor "creators of useful works and to deny creators of useless works any reward."

This intent, the Fifth Circuit argued, was evident in the legislative deliberations leading to the Copyright Act of 1909. The justices also saw many hazards in approaching the matter subjectively:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme, some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke. It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time. At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value, it would be bold to say that they have not an aesthetic and educational value, and the taste of any public is not to be treated with contempt.

And the Ninth Circuit Court of Appeals, which covers Northern California, chose to tread lightly in a 1973 copyright infringement case between publishers of horse race handicapping books. "There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work," the appeals court panel concluded.

Where does this leave our Hard Drive Productions case? Wong's attorneys concede that later Ninth Circuit decisions departed from the earlier rulings they cite. But they hang their case on one argument: given the absence of any subsequent en-banc (full judicial panel) Ninth Circuit (as opposed to Fifth) rulings or Supreme Court precedents, the later decisions "do not constitute binding precedent."

It all seems a bit like a Hail Mary pass, but the case does shed light on how much our thinking about copyright and intellectual property has changed since the Gilded Age—when a judge could toss an infringement suit out into the street because the lyrics of the song in question were a little too "hot" for him.