Porn Piracy Perfectly Legal, Lawsuit Claims

Is porn art? It’s a philosophical debate, but it’s also one that could shake up the world of online porn piracy.

A woman accused by a porn studio of illegally sharing one of their titles has fired back a multi-faceted legal defense, including a bold claim that under the US Constitution, pornography cannot be copyrighted.

Lawyers for Hard Drive Productions Studios wrote to Liuxia Wong to tell her that her IP address had been fingered for sharing the movie “Amateur Allure Jen” via BitTorrent. It was what’s now becoming a familiar threatening letter, threatening court action that could result in a maximum penalty of $150,000, and demanding $3,440 as a compensation payment that would end the matter right away.

Wong not only denies the claim, but isn’t waiting around to be sued or prosecuted. She’s filed her own lawsuit, requesting a declaratory judgment. That’s not an award or damages, but rather a formal court ruling on a statement of fact or a legal question. Such rulings can be cited in subsequent cases and carry great weight.

In this instance, Wong wants the court to rule that Hard Drive was wrong to label her a pirate and was unfairly harassing her. Among her points was that it appears that although the movie was made and released more than a year before Wong’s alleged filesharing, the studio (contrary to its claims in the letter) did not register it for copyright until a few weeks after she supposedly shared it.

She also notes that the letter falsely claims that she could be held liable for the filesharing even if it was done by a stranger who was taking advantage of an unsecured Wi-Fi network.

The stand-out argument is that porn itself can’t be copyrighted. Wong cites the United States Constitution, which declares that Congress has the power:

“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.”

According to Wong, this means that copyright laws for movies only have constitutional validity where they cover “useful Arts”, and she believes the work of Hard Drive does not come under this category. Indeed, she not only labels the work obscene, but says that by paying people to perform sexual acts in return for money, the studio is in fact committing several criminal offenses relating to prostitution. (This does raise question over the amateur status of the aforementioned Jen.)

Hard Drive hasn’t commented on these specific issues yet. It’s instead asked the court to throw out the lawsuit, reasoning that as it hasn’t yet begun legal action against Wong, it’s premature to examine any legal case it may later make.





12 Responses to Porn Piracy Perfectly Legal, Lawsuit Claims

  1. Oh, for fuck's sake.

    First of all, who cares when they registered their copyright. Under current U.S. law, works are copyrighted the moment they are created.

    Second, porn is most certainly useful. It's driven a great deal of the development on the web.

    I'm not fond of the way that copyright is enforced these days, but, I'm more ticked off by this woman's defense.

  2. first off no its not copyrighted as soon as its made a lot of stuff has been stolen from its creators before they got it copyrighted and they didnt get anything. if you take a minuet to actually read it said that they copyrighted it after the incident, indicating that it did require copyrighting so it wouldn't fall into the useful arts category.
    the case will probably be one of those where they cant charge someone with a crime committed before it became illegal to do the act since it wasn't copyrighted and technically and freeware file.

    i hope she sues them for that stunt they pulled and gets their money. and technically shes correct about the prostitution.

    • Please don't reply unless you know what you're talking about. Creative works are copyrighted in the U.S. from the moment they are put down on a fixed medium — in the case of films, from the moment they are recorded on film or videotape or digital media. The only way that wouldn't be true is if the work is not copyrightable (and the lady's argument for /that/ is pretty flimsy).

      • and here is the funny thing… YOU ARE WRONG…Sort of
        yes in theory you won the basic form of Intellectual Property rights as soon as you create it but to have enforcable right you must register it for copyright… 2 classic examples with slight differences.
        1. Mickey Mouse was never Copyrighted… in fact in order to control it they had to later register him as a trade mark…
        2. Evil Dead… The original version was released with a copyright slide in the titles… however when it was rereleased by the sttudio someone forgot to include a copyright slide and hence it fell into the hands of public domain ownership.

        oh and the reason ofr the porn is actually prostitution is that you are not allowed to profit from crimninal activity so if it is ruled as prostitution then techniacally the State can sieze all profits from the movie.

        • Bevin.

          “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.”

          http://www.copyright.gov/help/faq/faq-general.htm

          Registering for copyright is what allows you to litigate an infringement, but this can be done after an infringement, because copyright is granted upon creation. Registering after the infringement just means you can’t be granted statutory damages or legal fees, but you can still sue for actual damages and profits. This is found in the circular linked from the previous source.

          Also your examples are dated and misinformed.
          Night of the Living Dead (not Evil Dead) became public domain because the laws in 1968 required proper notice to maintain copyright, which they do not require now.

          And Mickey Mouse is in fact copyrighted AND trademarked, and will remain so until at least 2023.

          Do some google-ing before calling people out.

        • There are different levels of copyright protection. While, yes, there are some rights assigned to work that hasn't formally filed for a copyright protection through the USPTO, those works are not protected at the same level as those that have been copyrighted, trademarked, or patented. This is an issue many people confuse, and a cursory google search is not going to explain.

          For example, documentation of creation is good proof for a patent, but doesn't protect you from someone else copying your design.

        • When a cursory google search leads you to information directly from the copyright office, I think that's sufficient.

          "Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed."

          "Copyright protects original works of authorship, while a patent protects inventions or discoveries. Ideas and discoveries are not protected by the copyright law, although the way in which they are expressed may be. A trademark protects words, phrases, symbols, or designs identifying the source of the goods or services of one party and distinguishing them from those of others. "

          &lt ;http://www.copyright.gov/help/faq/faq-general.html#protect>

          Note that this isn't talking about a registered copyright, but simply the copyright protection that is granted upon creation of an original work of authorship.

          No patent or trademark necessary here. And patents and trademarks, are entirely have different rules and regulations than a copyright. So I don't see how your argument applies.

          "In general, copyright registration is a legal formality intended to make a public record of the basic facts of a particular copyright. However, registration is not a condition of copyright protection."

          Registration allows for you to enforce your copyright by law, it does not extend extra rights to your work. You already have all the rights to your work upon the moment of creation. Registration is a way to make public record of those rights, so that they can be used in a court. A person can easily infringe on a copyright without that copyright being registered.

  3. "According to Wong, this means that copyright laws for movies only have constitutional validity where they cover “useful Arts”…"

    Wong, honey, if the porn helped ya get off then I think we can all agree that it was a "useful Art." Not that I don't support you in your attempt to groin kick a bunch of lawyered-up jerkoffs, but if you're downloading porn then you obviously find it "useful."

  4. The courts won't allow this. At least I hope not. one, especially the government should decide for other people what is art and what isn't… And to the guy above, pulling out Mickey Mouse in an argument about copyright law, forgets that the law has changed several times since then… It is true that copyright is now "opt-out", rather than "opt-in"…