[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