Lazier Than Thou said:
See Spot Run said:
Curiously, there's a case being heard by the california courts right now over porn piracy where the defendant's argument is that you actually can't legally copyright porn, and therefore it's not a crme to pirate it.
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."
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.
Taken from: The Consumerist [http://consumerist.com/2012/02/lawsuit-you-cant-charge-me-with-downloading-porn-because-you-cant-copyright-obscenity.html]
Wh knows what the decision would be, but it's a little bit hilarious.
In order to rule that porn could be legally restricted for sale to minors, they had to class it as obscenity.
Classing it as obscenity indicates that it can't be legally copyrighted.
I'm interested to see how this case plays out.
Okay, I admit that is absolutely hilarious, but doesn't that same logic apply to movies rated R and games rated MA?
I mean, by their argument, R rated movies are restricted from being viewed by minors, right? Same goes with MA games. Does that make them obscene and then not able to be copyrighted?
Good question overall. But this kind of thing is based on the
old ideas about copyright.
The concept of Intellectual Property that is pushed really hard these days doesn't gel well with the implications of this...
Think about it. If Porn cannot be copyrighted
at all that makes it public domain by default.
If the status of anything that someone made an effort to create is public domain by default, then it implies they never owned it to begin with.
Which makes the whole concept of 'intellectual property' a bit of a joke.
(The default idea of property is not that it's collectively owned by the public unless stated otherwise. Which would appear to be the implication of copyright laws...)
However, on a slightly different note, I would argue that an R or MA rated film or game isn't technically obscene.
For something to be obscene generally means it was refused classification altogether. (or has a classification in line with it being considered obscene.)
That may mean an R rating is unenforceable legally... (Which if I understand US law is actually true; - Games ratings are voluntary. Not legally enforced.)
Of course, that's very much a US thing. The ratings systems in other countries have far more legal weight behind them, because most other countries don't technically have freedom of speech as a fundamental concept.
(People in the UK & Australia for instance don't technically have the right to free speech. They have such rights in practice, but there's no actual fundamental legal protection of the idea of free speech...
Which might go some way to explaining UK libel laws, or the fact that an idea such as a 'super-injunction' is even possible...)
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