Quote:
Originally Posted by Quentin
Just to clear up a few things here:
1) The counter-claimant is from Lexington, Colorado - not Lexington, Kentucky. So, unfortunately, we'll all have to come up with some other kind of cheap joke aimed at him, since (so far as I'm aware, at least) incest is not something commonly associated with people residing in Colorado. ;-)
2) With all due respect to baddog's interpretation of the one counter-claim, no court is going to read that as an admission of guilt. No way. gideon is absolutely right on this point; the "porn isn't copyrightable" claim is made because it is potentially dispositive. If Fantalis can persuade the court that he's right on that point, every claim Malibu has made against him is rendered moot.
3) Having stated #2 above, I also think the "porn isn't copyrightable" claim has very little prospect for success. Rather than try to explain why in my own words, I recommend reading this article that Marc Randazza wrote for XBIZ a while back. It lays out some of the relevant case law that governs the question of whether porn can be copyrighted, and notes that the court would have to break with several precedents in order to reach that conclusion regarding any sexually explicit depiction that has not already been found obscene by a trier of fact. It might be possible that the judge in this case can issue a declaratory judgment that the individual Malibu work in question is obscene, but I strongly, strongly doubt any judge will go so far out on a limb as to declare all porn to be ineligible for copyright protection.
4) It's pretty likely that none of the above will matter, one way or the other, because my guess is that this case will settle, with terms confidential, just as the Liuxia Wong/Hard Drive matter did. |
Just been reading those articles and the "porn isn't copyrightable" will cause a lot of problems
This footnote was incidental to the Court?s order, and inserted for context and flavor. However, two San Francisco attorneys ? Aaron McClellan and Steven Yuen ? and their client Liuxia Wong, took it as an invitation to reopen the question in the U.S. District Court for the Northern District of California. Wong was identified as the owner of the IP address used to torrent one of Hard Drive?s movies in an earlier lawsuit; she received a demand letter on that basis. Wong then filed a lawsuit, asking the Court, in part, to declare that she cannot be liable for copyright infringement because, as pornography, it cannot be copyrighted. Her argument comes down to this:
?Hard Drive?s work does not promote the progress of science.?
?Hard Drive?s work does not promote the useful arts.?
?Hard Drive?s work depicts obscene material.?
?Hard Drive?s work depicts criminal acts and/or conduct.?
?Hard Drive?s work is not copyrightable.?
Wong?s attorneys? argument that pornography cannot be copyrighted rests on two flawed premises. The first, that pornography is not copyrightable because it depicts unlawful conduct, has been eliminated since the California Supreme Court held in People vs. Freeman that pornography was not prostitution and not a crime. The second, that pornography is not a ?useful art? as contemplated by the Constitution, would impose an illegal, content-based restriction on copyright protection ? one that has been consistently rejected. These contentions do not reflect the law or any sane legal theory, but only the opportunistic morality of Ms. Wong and her attorneys.
If successful, it would deprive the adult industry and many others of their ability to protect their original works. What is worse is that it would usher in a new era of the government acting as a censor, by using its power to deprive disfavored content of its constitutionally mandated incentives.
http://www.xbiz.com/articles/147189/