For the first several years of the entertainment industry’s crackdown on online piracy, American pornographers did very little to go after the people who filled up gigabyte after gigabyte of hard drive space with bittorrented x-rated material. But in recent years, realizing there is money to be made by merely threatening “John Doe” defendants with making their names and downloading habits public, that has begun to change. But one California woman is fighting back, claiming that the porn she didn’t violate copyright laws because the porn she’s accused of downloading isn’t copyrightable.

First off, the plaintiff in the case says she never downloaded the particular flesh flick she’s been accused of acquiring illegally. And even if she had bittorrented the movie, she says that she and others being targeted by a litigious porn company did nothing wrong in the first place.

The woman goes all the way back to the Founding Fathers for her explanation of why copyright law doesn’t pertain in this case.

From the lawsuit:

Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the U.S. 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.”

Thus, copyright is authorized only for works which promote the progress of science and the useful arts.

Horizontal Stare Decisis or Circuit law binds all courts within a particular circuit, including the court of appeals itself… “[T]he first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals… Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court” or “unless Congress changes the law.”)

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 not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent.

[Defendant]’s work does not promote the progress of science.

[Defendant]’s work does not promote the useful arts.

[Defendant] has judicially admitted that its work is adult pornography.

[Defendant]’s work depicts obscene material.

Plaintiff is informed and believes, and thereon alleges that to create the work, [Defendant] and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.

[Defendant]’s work depicts criminal acts and/or conduct.

[Defendant]’s work is not copyrightable.

She also alleges that the pornographer knowingly allowed users of bittorrent sites to post this movie and others without issuing a DMCA take-down notice, thus turning these sites into “honeypots so they could continue to log IP address[es]” of users for future litigation.

Once porn companies put a name to that IP address, it’s not uncommon for them to threaten litigation that would seek six-figure penalties and result in the public knowing that defendants downloaded x-rated films. Many defendants settle for a few thousand dollars with the hope that they remain listed as “John Doe.”

Is Pornography Copyrightable? [Courthouse News]

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