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.