Does and Don'ts, Rights and Wongs: US pornography goes to court

What is paw-nography,
wonders a baffled Kat
In a post that is likely to create general havoc with law firm IT policies everywhere, this Kat brings you a thought-provoking piece concerning the copyright status of pornographic films in the US.  Hard Drive Productions, Inc ('Hard Drive') claims to own copyright in a number of adult films. On 22 April 2011, Hard Drive commenced a number of John Doe actions in the US District Court of the Northern District of California, alleging that anonymous infringers associated with certain Internet Protocol ('IP') addresses had infringed Hard Drive's copyright its film 'Amateur Allure Jen' and seeking the discovery of the identity of the individual account holders. 'Amateur Allure Jen' was first published on 3 March 2010, but only registered with the US Copyright Office on 22 April 2011.

Ms Liuxia Wong was subsequently identified as an account holder of the IP address which allegedly downloaded 'Amateur Allure Jen' on 28 March 2011. In a letter of demand dated 13 July 2011, Hard Drive sought to settle the matter with Ms Wong for US$3,400. The letter noted that if Ms Wong did not settle, she could be liable for statutory damages of up US$150,000. On or before 27 September 2011, Ms Wong notified Hard Drive that she denied Hard Drive's claim of copyright infringement. Hard Drive later dismissed this without prejudice.

On 21 November 2011, Hard Drive commenced copyright proceedings against a single John Doe defendant. On 6 January 2012, Hard Drive filed a petition to issue a deposition subpeona to Ms Wong so that she could identify the actual infringer who used her account. Hard Drive believed that due to the nature of 'Amateur Allure Jen' Ms Wong was not the infringer, but rather it was a member of her household or guest/tenant. This petition was granted on 18 January 2012.

In response, on 31 January 2012, Ms Wong filed a petition for 'declaratory relief based upon the continuing improper conduct of ... Hard Drive Productions, Inc ... in harassing [her] ... to settle claims of purported infringement of Hard Drive's purported copyrighted works' (at [1]).

Ms Wong set out (at [80]) that Article I, Section 8, Clause 8 of the US Constitution defined 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'. For Ms Wong, it followed (at [81]) that 'copyright is authorised only for works which provide the progress of science and the useful arts'. Relying on early circuit law (at [83]) in California which held that obscene works did not promote the progress of science and the useful arts, and therefore could not be protected by copyright, Ms Wong bluntly emphasised the point:
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.
Rather than engage with the substantive issue raised in Ms Wong's petition, Hard Drive elected to defend the matter on procedural grounds stemming from the fact that Ms Wong had not actually been named as the alleged infringer of Hard Drive's copyright. It followed that 'because there was no claim or controversy at issue, this Court lacks subject matter jurisdiction and should dismiss the Complaint' (at 4).

This sweet and innocent Kat (who did not even know how to spell 'pornography' until this post) wonders how Ms Wong's argument will sit with either the First Amendment/Freedom of Speechers or judicial officials who would be called upon to assess whether a particular pornographic film 'progressed science and the useful arts' ...

Merpel cannot resist the obvious joke: she is not surprised that Hard Drive are not taking the matter laying down ...
Does and Don'ts, Rights and Wongs: US pornography goes to court Does and Don'ts, Rights and Wongs: US pornography goes to court Reviewed by Catherine Lee on Tuesday, February 21, 2012 Rating: 5


  1. Good one, Merpel!

    The Court probably won't go back to its lurid days of sitting in the basement of the courthouse watching pornographic films and trying to decide if they meet the definition of obscenity. Fortunately for the judges, the question has evolved from whether the work "promotes the progress of science and the arts" to whether it has "a modicum of originality." This Kat suspects )having no real knowledge) that you don't have to watch much one of these films to determine that enough originality exists to sustain a claim of copyright. The court, I think, is likely to, er, "blow off" (?) Ms. Wong's petition in rather short order. The First Amendment will probably remain intact after this case!

  2. What has the First Amendment got to do with it? It's not Hard Drive's right to publish this stuff that's in issue, it's their right to stop other people publishing it!

    (and while we're on 'freedom to publish' why has Ipkat junked its splendid clear coloured captchas in favour of irritatingly indistinct monochrome ones? A retrograde step!)


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