April 26th, 2012 | By Polypomp

Courtgasm: Can Porn Be Copyrighted? A Win for the Pirates

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Travis Lewis - Zombie Girl

Welcome back to another installment of Courtgasm, where powdered wigs meet hairless muffs and double jeopardy is doubly penetrated and the one time of the week where I can blow my jurisprudential load without reservations.

This week we return to an old topic, one I thought was dead and buried like a normal dead person, but it turns out was dead like an undead person, and has risen from the grave. This week, can porn be copyrighted, the third part of an ongoing miniseries (episodes one and two; I swear they are better than that Star Wars shit, there certainly is no JarJar Binks).

The nature of law is like that of zombies, and one can apply many lessons from zombie movies to law. First, just when you think something is dead, it will rise again; ad infinitum.

Second, most court cases stay at the lowest court, the district court, but some climb all the way to the supreme court; most undead cannot climb ladders, but some are very adept at this. Certain types of court cases tend to be high profile, and anything involving a “constitutional question” is begging to be heard by a federal court; whether or not the constitution guarantees copyright protection of porn is one such question.

Finally, don’t use guns, they are unreliable and run out of ammunition at the most inopportune times; as with the law, just because something has worked dozens of times before doesn’t mean it always will. What gives law its stability is the reliance on precedents which is the foundation of stare decisis, but as we have seen many times this is abandoned in favor of new and often better laws.

In our case at hand, it has been heard by the judge of the lowest court, and that judge ruled in the plaintiffs’ favor, that is to say, in favor of online piracy. My previous post about a lawsuit against Hard Drive Productions was actually regarding the illicit download of a different porn, but as the nature of these cases is the same one ruling will likely “rule them all,” as it were.

The judge was swayed by the honey pot argument lodged by plaintiffs’ lawyers; that Hard Drive had no real interest in litigation they were just abusing the court system to intimidate people into settlements. There is no mention of whether or not pornography is copyrightable, perhaps because the lawyer for this plaintiff is not a moron like Steven Yuen, the genius behind the argument that porn cannot be copyrighted from my first post.

One argument I have not seen discussed much in the courts is porn studios using the threat of “outing” porno pirates in public court documents as a form of extortion (by law all public court hearings are well, public). If you are a business professional, family person, or anyone with a good reason to not want everyone on earth to know you love porn you have a strong incentive to settle out of court.

While pirates admittedly have done something wrong, I believe this is a clear form of coercive extortion. The humiliation factor at play here, a form of slut shaming, is probably the major distinction between these porno lawsuits and the music piracy cases that are their legal precedent.

It’s interesting to see that the courts currently seem willing to side with the pirates in the case of pornography, whereas with music and movies more often than not they have sided with the multibillion dollar corporations. Perhaps this could signal a larger trend towards downloaders rights’ online, but I highly doubt that seeing the federal government’s repeated attempts to crackdown on Internet freedom.

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