[luso_brazilian]

From the article:

> The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution.

> An argument in favor of refusing copyright protection is the very reason why copyright protection is granted in the first place: it gives incentives for creation.

> Allowing copyright protection on pornographic works, then, would only give more incentive for pornographic creations.

That's a losing battle right there.

First because the Supreme Court already affirmed adult entertainment as encompassed by the first amendment.

Second because it is a dangerous precedence to remove legal protections off something based on subjective standards. Today it is for adult entertainment, tomorrow it could very well be (for instance) for political comedy.

[anigbrowl]

whether pornography promotes the progress of science and useful arts

The creation of sexual pleasure is a useful art. People clearly care enough about sex to devote significant parts of their lives to it, and it has major interactions with their health and happiness. Why then should its practice and technique not be fit subjects for art? What is the purpose of music but to supply aural pleasure, or of paintings and sculpture but to supply visual pleasure?

To be sure, pornography of one kind or another may not appeal to people. What of it? Many art works in other media leave me cold or even repulse me. I can cite artists whose work I loathe looking at but yet consider to be extremely high in art value, partly because they make me so uncomfortable. I see no reason for art based on sexual performance to be any different.

I find this whole proposition offensive, designed to devalue the interests, creativity and effort of one group of people in order to maintain the convenience of others - the very definition of oppression. In a broader sense, telling people in general that their sexuality is inherently lacking in worth is little more than a crude bid for psychosocial control by associating a center of bodily excitement and pleasure with feelings of shame and uselessness.

[jonathankoren]

We already removed legal protections based on subjective standards. Subjective standards is pretty much all of case law. More to the case at hand, there are obscenity cases, not all of which are immediately cast out on first amendment grounds. Specifically, I'm thinking of Max Hardcore's felony obscenity conviction that resulted in a four year prison sentence.[0]

What would be interesting, would be if the Wong didn't just claim that porn isn't useful, and so it isn't copyrightable (which seems like a losing strategy), but rather claimed that the porn in question was criminally obscene, and that the criminal nature of the work rendered the copyright void. Ironically, a successful defense would then potentially open you up to some sort of obscenity trafficking charge. Hoisted on your own petard as it were.

Unfortunately for Wong, this appears to be just run of the mill heterosexual porn, so unlikely to be ruled obscene. So the moral of the story is to download only the really really kinky stuff.

[0] https://en.wikipedia.org/wiki/Max_Hardcore#Prosecutions

[isu_programmer]

>> What would be interesting, would be if the Wong didn't just claim that porn isn't useful, and so it isn't copyrightable (which seems like a losing strategy)

Just as a quick aside, the copyright part of U.S. Const art. I, § 8, cl. 8, is actually the phrase 'Science', and not 'the useful Arts.'

Edit: I know the misuse of the 'useful arts' phrase was from the blog post itself, and replied to this post only because it was the first I saw that mentioned that part of the post.

[fjdlwlv]

Why would you post something so blatantly false and easy to refute?

https://en.m.wikipedia.org/wiki/Copyright_Clause

[isu_programmer]

This was one of the more interesting things I learned during law school that can be easily explained without a lot of background knowledge in the U.S. Copyright and Patent systems.

Now, I am not sure how that wikipedia article refutes what I said. If it is because the article refers to U.S. Const, art I, § 8, cl. 8 as the "Copyright Clause", you can also see under the heading "Other Terms" the article refers to that same clause also as the "Copyright and Patent Clause", "Patent and Copyright Clause", "Copyright Clause", "Patent Clause", "Intellectual Property Clause", and the "Progress Clause." Copyright and Patent Clause is probably the best name for it as the clause deals with both subject matters, (I dislike calling it the Intellectual Property clause, because other areas of IP, such as trademark and geographic indicators fall under other clauses).

Additionally, that article actually supports what I said. In the first paragraph under "Effect", the article discusses how "[s]ome terms in the clause are used in archaic meanings, potentially confusing modern readers." Specifically it discusses how "useful Arts" refers to people skilled in manufacturing crafts and not artistic pursuits, and how "Science" addresses general knowledge and not scientific inquiry.

While wikipedia may not be the best source for this, other wikipedia articles may be illustrative on the original meanings of these words, such as the article on the term Useful art itself. (https://en.wikipedia.org/wiki/Useful_art)

But again, the cool thing, is that we can discover this connection ourselves by just looking at the text of the clause. In looking at the clauses construction we can see an A and B pattern being followed. Where A refers to copyrights and B refers to patents. Here is the clause with the A and B pattern annotated.

"To promote the progress of (A) science and (B) useful arts, by securing for limited times to (A) authors and (B) inventors the exclusive right to their respective (A) writings and (B) discoveries;"

Learning this distinction was actually helpful to me in my following coursework, as it helped me understand why in patent law we use phrases like "prior art" and "person of ordinary skill in the art" and why copyright law applies to works outside of creative endeavors, such as scientific journal articles or news articles.

Now, as far as legal effect, these words have very little to do with how we apply the laws of Copyright and Patent. They merely explain the reasons why we empower the federal government with the power to pass laws affecting copyrights and patents. Pass any constitutional challenge that the copyright laws and patent laws are beyond Congress's power, U.S. art I, § 8, cl. 8 is little help in assessing a copyright or patent case.

[Declanomous]

This seems like a really important distinction. Though, the fact that other works can be copyrighted seems like that distinction isn't that important.

Also, doesn't the US have international agreements regulating copyright, and couldn't those protections be much more broad than the constitutional protections anyways?

[wildmusings]

There is no right to copyright; in fact Congress could abolish copyrights altogether tomorrow if it wished. Rather, there is an enumerated power for Congress to create copyright. If one could prove that a certain aspect or application of copyright law falls outside of that enumerated power, then it would be void as Congress had no power to create it in the first place.

[projektfu]

If it weren't specified in the US Constitution then it would devolve to common law and State constitutions because of the elastic clause. The right of copyright was invented before the US Constitution.

[will_brown]

>Subjective standards is pretty much all of case law.

Some areas of law are more objective standards - using bright line rules in lieu of balancing tests, but you are correct there is always an element of subjectivity in the application of facts to law no matter the standard.

1st Amendment law is notoriously full of balancing tests, probably best exemplified by Justice Stewart:

"I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that."

[emodendroket]

> Unfortunately for Wong, this appears to be just run of the mill heterosexual porn, so unlikely to be ruled obscene. So the moral of the story is to download only the really really kinky stuff.

Given the community standard stuff I'm not so srue.

[jonathankoren]

Have you seen "Amateur Allure Jen"?

[emodendroket]

Well, no, but the point is that since it's a community standard any porn could conceivably be found offensive to community standards somewhere.

[jonathankoren]

Not really. Pornography isn't illegal anywhere, and today it's even easier to undercut pearl clutching about porn. I'm sure PornHub's data team would love to help. See http://www.pornhub.com/insights/united-states-top-searches

[monochromatic]

First Amendment protections are very different from copyright protections.

[daveFNbuck]

Which is why this would be a dangerous precedent for the kinds of political comedies that rely on copyright protection for their existence. Unfortunately, that's pretty much all the ones that matter.

[emodendroket]

Yeah but once you start putting things in these terms it's a short leap to declaring it obscene under the Miller Test, isn't it?

[dozzie]

>> The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution.

Hollywood movies don't promote "useful arts" nor "science", so they should be denied copyrightibility as well.

[technofiend]

Although I disagree and would argue a movie like Crouching Tiger, Hidden Dragon is very much useful art, I'm also in favor of rolling back the last thirty years of Disney and MPAA-sponsored legislation and restoring copying duration to something reasonable like 30 years and throwing out the DMCA entirely.

[kefka]

Good luck with that.

Even the new BOTS act passed yesterday, section 1 includes the similar language preventing actions the same way the DMCA does.

[emodendroket]

I think cinema is pretty well established as an art.

[venomsnake]

I have seen a lot of stuff in porn that I did not thought possible the human body can take/do ... so I guess it has both scientific and (somewhat)useful arts value.

[Spooky23]

We already went down that path when the Washington Redskins hurt some feels.

[ue_]

There's also the case of child pornography, which can't be reasonably defended against copyright infringement in countries where it is illegal to even possess. But there are other incentives (money, sharing with your neighbor) which keep it going, which do well enough.

The idea that you can't claim copyright infringement stops new things from being made is a fallacious one.