Defendant Says Porn is NOT Copyright-able

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Is Pornography Copyrightable?

By WILLIAM DOTINGA  from http://www.courthousenews.com/2012/02/03/43613.htm

     SAN FRANCISCO (CN) – A woman claims pornography is not copyrightable because it is not a science or useful art even if she did download some porn, which she did not.
     Liuxia Wong sued Hard Drive Productions in Federal Court, after refusing to settle its demand for $3,400.
     Hard Drive claimed Wong’s IP address had been used to download the porn flick "Amateur Allure Jen."
     Wong denies downloading the title.
    

 Hard Drive sent her a demand letter telling her "she may be liable for statutory damages of up to $150,000," but it would settle for $3,400, Wong says.
     In her first amended complaint, Wong claims Hard Drive knew that Bittorrent trackers were transmitting its porn, but "never issued Digital Millennium Copyright Act (D.M.C.A.) takedown notices to the owners and/or operators of the Bittorrent trackers because it and/or its agents using them as honeypots so they could continue to log IP address[es]."
     Wong says that even if she had downloaded "Amateur Allure Jen," there was no copyright infringement because obscene materials cannot be copyrighted.
   

  "Article I, 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,’" Wong says in her original complaint.
    

 "Thus, copyright is authorized only for works which promote the progress of science and useful arts. …
     "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.
     "Subsequent non-en banc decisions by the Ninth Circuit failed to follow this prior circuit decision in California.
     

"Given the absence of any subsequent en-banc Ninth Circuit decisions, Supreme Court precedent, or changes in the Constitution that copyright is authorized for works which does [sic] not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent.
     "Hard Drive’s work does not promote the progress of science.
     "Hard Drive’s work does not promote the useful arts.
     "Hard Drive’s work depicts obscene material.
     "Hard Drive’s work depicts criminal acts and/or conduct.
     "Hard Drive’s work is not copyrightable."
    

 Wong’s case has a somewhat tangled history.
     She says Hard Drive originally sued her in Federal Court as one of 48 Doe defendants, and did so by improperly joining the defendants to avoid paying the $350 filing fee for each action. Hard Drive then applied for expedited discovery, seeking names, addresses, and telephone numbers of the Doe defendants from their Internet service providers.
     With her identifying information in hand, Wong says, Hard Drive sent her the threatening letter, claiming she had to pay the $3,400 even if she did not download the pornographic material herself.
     "In Hard Drive’s settlement demand letter, it notified the plaintiff that she was liable for copyright infringement by merely having an unsecured wireless network/router even though plaintiff did not download the work, did not tell anyone to download the work, and did not know anyone was using her Internet service," her amended complaint states.
     

She says the threat of $150,000 in damages was "designed to intimidate and coerce the plaintiff into paying the settlement demand of $3,400 as it would be more expensive for her to retain an attorney to defend her against the allegations."
     Wong says Hard Drive dismissed the action against the 48 Doe defendants in September 2011, then filed a new complaint against a single John Doe in November 2011. Hard Drive applied ex parte in January this year to depose Wong, even though she was not a defendant in the new action.
    

 As an alternative to a deposition, Wong says, she offered to declare under penalty of perjury that she did not download "Amateur Allure Jen," but Hard Drive refused her offer. Instead, she says, it demanded $3,000 from her, or it would proceed with the deposition.
     Wong insists she never downloaded Hard Drive’s porn in the first place.
     Wong is one of 1,495 Internet users Hard Drive Productions has sued for copyright infringement since 2011, according to the Electronic Frontier Foundation, a San Francisco-based digital rights group.
     Many of the defendants moved to quash subpoenas from Hard Drive aimed at revealing their identities, and most of the motions were filed under seal to protect their anonymity, the EFF said.
  

   In January, however, a federal judge in Washington, D.C. issued a "Catch-22" order requiring the defendants to reveal their identities before their motions could proceed. In a friend of the court brief, EFF says the judge’s order could force defendants to settle with Hard Drive, to avoid the humiliation and the expense of an attorney, rather arguing their cases on merit.
   

  "These subpoenas need to be considered in the context in which this case was brought," EFF staff attorney Mitch Stoltz said in a statement. "[Hard Drive] hopes to take advantage of the stigma associated with pornography – as well as the threat of an expensive court battle – to induce people to settle no matter what their defenses might be. If defendants can’t fight the exposure of their identities without exposing their identities, then the plaintiffs have already won."
     The EFF said a growing number of mass copyright lawsuits are being filed with no intention of litigating them. Instead, the group says, plaintiffs such as Hard Drive appear intent on forcing Internet service providers to reveal names, addresses, and phone numbers of the defendants. The plaintiffs then send settlement letters offering to make the lawsuit go away for a few thousand dollars – as in Wong’s case.
   

  "All that plaintiffs need here to pursue their settlement shakedown scheme is the identity of the anonymous defendants," EFF intellectual property director Corynne McSherry said. "These defendants have a First Amendment right to argue for their anonymity without the court forcing them to moot that argument from the start.
   

  "We’re asking for these motions to quash to go forward without requiring them to be unsealed, and we’re also asking the court to throw this case out given the basic due process flaws."
     In an opposition to EFF’s amicus brief, Hard Drive attorney Paul Duffy calls the group "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights. …
    

 "The court should reject the idea that an interest group like EFF can help the court by providing any unique insight or perspective. While EFF’s perspective may indeed be unique, their history of advocating lawlessness on the Internet suggests that their purpose is not to help this court administer justice, but to hinder and obstruct the process."
    

 For her part, Wong seeks a court order that Hard Drive’s work is not copyrightable, any copyrights it may have obtained for "Amateur Allure Jen" stricken, and a declaration that she is not liable to Hard Drive for infringement.
    

 Wong is represented by Aaron McKellan and Steven Yuen, with Murphy, Pearson, Bradley, and Feeney.