American porn makers have realised in recent years that there is money to be made from suing people who download porn from sources such as Bitorrent. One lady in California however is fighting back, claiming that the porn she has been accused of downloading isn't copyrightable in the first place.

The plaintiff in a current case is claiming that she never downloaded a film she has been accused of illegally downloading. She has added that even if she downloaded the film she has not breached copyright.

The lawsuit claims:

“Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the U.S. 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.”

Thus, copyright is authorized only for works which promote the progress of science and the useful arts.

Horizontal Stare Decisis or Circuit law binds all courts within a particular circuit, including the court of appeals itself… “[T]he first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals… Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court” or “unless Congress changes the law.”)

Early Circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.

Subsequent non-en banc decisions by the Ninth Circuit failed to follow this prior circuit decision in California.

Given the absence of any subsequent en-banc Ninth Circuit decisions, Supreme Court precedent, or changes in the Constitution that copyright is authorized for works which does not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent. [Defendant]'s work does not promote the progress of science. [Defendant]'s work does not promote the useful arts. [Defendant] has judicially admitted that its work is adult pornography. [Defendant]'s work depicts obscene material.

Plaintiff is informed and believes, and thereon alleges that to create the work, [Defendant] and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy. [Defendant]'s work depicts criminal acts and/or conduct. [Defendant]'s work is not copyrightable.”

The lady also says that the company who create the porn film have intentionally allowed users of bittorent sites to post the movie without issuing a DMCA take down notice. She said it was a move so the company “could continue to log IP address[es]”.

Porn companies use rather dirty tactics (no pun intended), threatening to release personal details to the public, to cause embarrassment. Many people pay a few thousand dollars in fees, just to protect their name against being released.

Kitguru says: Does the woman have a point?

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