Pornography is not Copyrightable, Complaint Alleges

In an interesting turn of events, a woman sued for copyright infringement, from allegedly illegally downloading a pornographic movie, is suing the owner of the movie’s rights, demanding relief from the prior lawsuit, claiming the material was not copyrightable in the first place.

According to the complaint, the plaintiff in this case, Liuxia Wong, denies ever downloading the film ”Amateur Allure Jen,” but claims that even if she did, there couldn’t have been copyright infringement because pornographic materials are obscene, and cannot be copyrighted.

The legal battle began when Wong received a letter from Hard Drive Productions stating that,”she may be liable for statutory damages of up to $150,000,” but that it would settle for $3,400. The complaint alleges that the company’s demand letter stated that plaintiff was liable for the illegal download, even if she did not personally act, because she maintained an unsecured wireless network.

The heart of Wong’s argument centers on the argument that, ”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. Thus, copyright is authorized only for works which promote the progress of science and useful arts.”

In summary, the complaint states:

“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.”

According to the article posted above, citing the Electronic Frontier Foundation, Wong is just one of 1,495 Internet users Hard Drive Productions has sued for copyright infringement since 2011.

Potential Outcome of Case

Obviously, if the court sides with the plaintiff, the entire pornographic industry would be affected. Thus, it seems unlikely that the court will make a demonstrative ruling about pornography in general. What is more likely to occur in this case, in my opinion, is that the court will find the plaintiff not responsible for the copyright infringement in the initial case, the one actually alleging the infringement, because the company will not have demonstrated that the plaintiff (there the defendant) was ever actually in physical or proximate possession of the film. Her mere act of having an unsecured wireless connection seems too tenuous make her liable for copyright damages she did nothing to incur.