Does and Don'ts, Rights and Wongs: US pornography goes to court
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| What is paw-nography, wonders a baffled Kat |
Ms Liuxia Wong was subsequently identified as an account holder of the IP address which allegedly downloaded 'Amateur Allure Jen' on 28 March 2011. In a letter of demand dated 13 July 2011, Hard Drive sought to settle the matter with Ms Wong for US$3,400. The letter noted that if Ms Wong did not settle, she could be liable for statutory damages of up US$150,000. On or before 27 September 2011, Ms Wong notified Hard Drive that she denied Hard Drive's claim of copyright infringement. Hard Drive later dismissed this without prejudice.On 21 November 2011, Hard Drive commenced copyright proceedings against a single John Doe defendant. On 6 January 2012, Hard Drive filed a petition to issue a deposition subpeona to Ms Wong so that she could identify the actual infringer who used her account. Hard Drive believed that due to the nature of 'Amateur Allure Jen' Ms Wong was not the infringer, but rather it was a member of her household or guest/tenant. This petition was granted on 18 January 2012.
In response, on 31 January 2012, Ms Wong filed a petition for 'declaratory relief based upon the continuing improper conduct of ... Hard Drive Productions, Inc ... in harassing [her] ... to settle claims of purported infringement of Hard Drive's purported copyrighted works' (at [1]).
Ms Wong set out (at [80]) that Article I, Section 8, Clause 8 of the US Constitution defined the purpose of copyright: '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'. For Ms Wong, it followed (at [81]) that 'copyright is authorised only for works which provide the progress of science and the useful arts'. Relying on early circuit law (at [83]) in California which held that obscene works did not promote the progress of science and the useful arts, and therefore could not be protected by copyright, Ms Wong bluntly emphasised the point:86. Hard Drive's work does not promote the progress of science.
87. Hard Drive's work does not promote the useful arts.
88. Hard Drive has judicially admitted that its work is adult pornography.
89. Hard Drive's work depicts obscene material.
90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
91. Hard Drive's work depicts criminal acts and/or conduct.
92. Hard Drive's work is not copyrightable.
Rather than engage with the substantive issue raised in Ms Wong's petition, Hard Drive elected to defend the matter on procedural grounds stemming from the fact that Ms Wong had not actually been named as the alleged infringer of Hard Drive's copyright. It followed that 'because there was no claim or controversy at issue, this Court lacks subject matter jurisdiction and should dismiss the Complaint' (at 4).This sweet and innocent Kat (who did not even know how to spell 'pornography' until this post) wonders how Ms Wong's argument will sit with either the First Amendment/Freedom of Speechers or judicial officials who would be called upon to assess whether a particular pornographic film 'progressed science and the useful arts' ...
Merpel cannot resist the obvious joke: she is not surprised that Hard Drive are not taking the matter laying down ...
