March 15th, 2012 | By Polypomp

Porn and Pirates – In Search of Lost Booty

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Imagine that this is a pirate hat instead.

Yarr! Ahoy matey! In case you missed my last post we are picking up where it left off discussing this court case and the intricacies of pornography and copyright law. Our last installment proved that there is a rather fine line between what is porn and what is art; it is really up the individual viewer to decide what they feel the intent of the work is, and for the creator to decide what their intent was.

Today I’m going to focus on the meat of US copyright law and how that pertains to Internet piracy and the porn industry. Piracy is a major topic of public debate these days, especially after Congress’ recent attempts to control it, the failed SOPA and PIPA. Unfortunately, for free speech advocates like myself, the much more terrifying ACTA still lurks in the shadows, signed by most of the major world governments but not ratified by any.

A major discussion in the case at hand is whether or not Hard Drive, the porn studio that produced the film that was supposedly pirated, was using the illegal file as a “honey pot.” A honey pot is a tactic where you use a bait that is too sweet to ignore, like honey, then you lure people in like flies and catch them in the act.

It is known that Hard Drive was aware the file was online being pirated through a 3rd party IP monitoring service and could have had the file removed via a Digital Millennium Copyright Act (DMCA) notice but they didn’t. This begs the question, why would a company ever willingly allow their content to be pirated? Perhaps because they can make more money that way. For all we know at present, employees of Hard Drive could have put the file online themselves as part of the honey pot. That is neither here nor there and something for the court to decide, which will be difficult to prove due to the diffuse nature of bit torrent.

While DCMA is not perfect, no law is, it has proven to be a very effective tool for removing illegal content from the Internet. Have you ever been linked to a video on Youtube only to find it has been removed? 9/10 times it was a DCMA request for removal and often these can come just hours after the file was uploaded. The fact that Hard Drive made no effort to even file a DCMA violation is very strange, almost a red flag to pirates to download their content. The fact that Hard Drive did not file a DMCA takedown notice is strong evidence to support the honey pot theory.

This case isn’t just about delicious pots of honey, that clearly are lies…delicious lawsuit harboring lies…this case is also about something critical to society’s social progress: whether or not pornographic material be copyrighted.

Don't pirate Sexy Miss Melanie's content.

Steven Yuen, the lawyer arguing Liuxia Wong’s defense, is of the belief that no porn can be copyrighted, and this view has become a major point of contest in the case. His reasoning is very simple: Article 1, Section 8, Clause 8 of the United States Constitution specifies that only things that “ promote the Progress of Science and useful Arts” can be copyrighted. I believe that his reasoning is too simple, so much so that it ignores more recent copyright law and jurisprudence. This could be the Achilles’ heel of the case, that which turns an otherwise solid case about harassment and honeypots into a steaming pile of failure.

As of 2008, according to the US Patent Office, “anything that is tangible can be copyrighted. There are three fundamental requirements for something to be copyrighted … Fixation … Originality … Minimal Creativity.” For something to be tangible by definition you must be able to touch it, so ideas automatically cannot be copyrighted (though potentially they can be patented). Fixation means that it must exist in a fixed form, such as being written down (a book), recorded (a CD), a film (such as a porno), or even posted online (like a porno posted to a porn website). Originality means that the work, as a whole, is original, though it may include parts of already copyrighted things (like a book quoting another book). Minimal Creativity basically means if you’re going to rip off an existing idea, you have to change it a little bit in order to copyright it (See the example of Mountain Dew and its many clones).

I didn’t go to no fancy law school, and I’m sure no big-time, city-slickin’ lawyer, but based off a very simple reading of the Patent Office’s view on copyright law it is pretty obvious that porn can be copyrighted, even if it doesn’t promote anything useful. In fact, it seems that anything tangible, that is fixed, original, and somewhat creative can be copyrighted, even if it hinders social progress and is ghostwritten (and what a bargain price, only $0.01 before shipping!).

Editor’s note: Curious about more details from the is-porn-copyrightable court case? Read more here.

Comments

  • http://twitter.com/caencontee Caen Contee

    This is hot. i thought porn would definitely be copyrightable… but now I am just confused :/ lol. Hot pics in any case! :)

  • http://twitter.com/keenstyle1 Jonathan Keener

    Oh for sure! Porn can definitely be copyrighted. No reason why like anything else out there it CAN’T be.

  • Ashton Maxwell

    Yeah this was always a question I had toyed with. Can you legally sell someone elses amateur porn that they distribue freely over the internet? Like if
    someone does not have a disclamer or a copywrite and they freely post
    it over the internet could you resell it to someone else legally? I always see amateur stuff floating all over the internet and didn’t know. What you say here makes sense though. Once a work is created, it is copyrighted and it is illegal to copy it without explicit permission. And it doesn’t matter what the work is. Porn or not.

  • CorvaxLorax

     Aaaactually, to the best of my understanding, all visual & video work is automatically copyrighted upon creation; registering the copyright is an extra step to protect the creator of the work, but isn’t strictly necessary to create a copyright. So: selling someone else’s amateur videos would be non-permissible because the copyright already belongs to the creator (unless the work was originally licensed under Creative Commons, which allows certain derivative & commercial works).

    From Wikipedia:

    “The use of copyright notices has become optional to claim copyright, because the Berne Convention makes copyright automatic.”

    Also, for what it’s worth, selling & distributing pornography requires the keeping of 2257 documentation – if you were to start selling amateur porn without that documentation & someone asked for it, you’d be in terrible, terrible legal trouble.
    http://en.wikipedia.org/wiki/2257

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