Is Pornography Not Protected by Copyright?

Stephen Carlisle December 7, 2018

An old legal argument, for many thought settled a long time ago, is starting to raise its head again in the Federal Courts.

On November 16, 2018, in the case of Strike 3 Holdings LLC v. Doe, ¹ a Federal Judge dismissed a Federal Copyright infringement lawsuit without any Motion to Dismiss being filed, based in large part because of the Court’s own determination that the Plaintiff’s films were “pornography” and not “even run-of the mill porn” plus finding the content contained an “aberrantly salacious nature.” ² Further in a footnote, the Court claims that “it is unsettled in many Circuits -including this one- whether pornography is in fact entitled to protection against copyright infringement.” ³

This is not the only aspect of the D.C. District Court’s ruling that should raise some eyebrows. First off, the Court’s ruling is not based on a Motion to Dismiss but on an ex parte application by the Plaintiff for the issuance of a 3^rd party subpoena so that the Doe defendant could be served. The Defendant, having never been served, seemingly did not appear and made no arguments. The Court itself, sua sponte raised the issue of obscenity, and apparently conducted its own ex parte investigation to view the films at issue in the case. I say “apparently” since if the Judge did not know the content of the films, how could he make the determination that the films’ content was “aberrantly salacious.” ⁴  One could also question the breadth and extent of the Judge’s knowledge into the current state of pornography available on the internet. I mean, how often does the Judge view pornography? What sort of porn sites does he visit? How often does he visit them? How else would he know that the “porn” in questions was not “even run of the mill porn?” ⁵

But, I digress.

The above, along with a long diatribe against the Plaintiff as “copyright troll” leads to the refusal to issue the subpoena. Since it was now impossible for the Plaintiff to serve the subpoena and gain knowledge of the Defendant’s identity, the Defendant cannot be served, and the case cannot proceed. Since this stops the case dead in its tracks, the Judge dismisses the entire proceeding, again sua sponte, but without prejudice. ⁶ This has the effect of allowing Plaintiff to refile the case (a likely futile exercise), but probably also renders this order not a “final” order that can be appealed.

But is the Judge right? Is pornography not protected by copyright?

The manifest weight of the existing case law says the contrary, the copyright laws do protect pornography.

At the outset, it is worth noting that this Judge, as many others conflate the terms “pornography” with “obscenity,” which do not necessarily mean the same thing.

“Pornography is the depiction of sexual behavior that is intended to arouse sexual excitement in its audience…Pornography has been regulated by the legal standards that govern the concept of Obscenity, which refers to things society may consider disgusting, foul, or immoral, and may include material that is blasphemous. Pornography is limited to depictions of sexual behavior and may not be obscene.” ⁷

“Obscenity is a category of speech unprotected by the First Amendment. Obscenity laws are concerned with prohibiting lewd, filthy, or disgusting words or pictures. Indecent materials or depictions, normally speech or artistic expressions, may be restricted in terms of time, place, and manner, but are still protected by the First Amendment.” ⁸

The first, and most widely cited case on the subject is Mitchell Brothers Film Group v. Cinema Adult Theater. ⁹ At issue was that the Defendants were exhibiting at their theaters pirated copies of the Plaintiff’s film Behind the Green Door. The Defendants claimed that the films were obscene and not protected by copyright. The judge viewed the movie, pronounced it obscene and issued a verdict for the Defendants. ¹⁰

Not surprising. This is Texas… in 1979, after all.

The Fifth Circuit Court of Appeals reversed. In a very thorough and well-reasoned opinion, found that there was nothing in the Copyright Act to suggest that copyright protection was dependent upon the content of the writing rather than whether it qualified as a writing. ¹¹ But the more important reasoning was this: Copyright is a Federal right. Obscenity is governed by community standards under the Supreme Court’s ruling in Miller v. California. ¹² To rule that obscenity trumped copyright would “fragment the uniform national standards of the copyright system and venturing into the uncharted waters of a national obscenity standard.” ¹³

Four years later, this was followed by the 9^th Circuit’s opinion in Jartech, Inc. v. Clancy. ¹⁴ Interestingly enough, the Plaintiff corporations were basically the same Plaintiffs as before: the Mitchell Brothers. The 9^th Circuit reached back to their decision in Belcher v. Tarbox ¹⁵ for the holding that

“There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness of the views embodied in the copyright work.” ¹⁶

It also adopted the view of the Fifth Circuit that:

“Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community while in effect, authorizing pirating in another locale.” ¹⁷

Even further down the line, as recently as 2012, the Seventh Circuit Court of Appeals ruled:

“[Plainitff] specializes in the production and distribution of videos of black men engaged in homosexual acts. Although some people would disapprove of such a service there is no suggestion that it is illegal; and anyway the prevailing view is that even illegality is not a bar to copyrightability.” ¹⁸

In light of the opinion of three different Courts of Appeal that pornography is entitled to copyright protection, what are we to make of the opinion of the Judge in the District of Columbia? Of course this Judge is not bound by these other opinions. But what of his assertion that “it is unsettled in many Circuits -including this one- whether pornography is in fact entitled to protection against copyright infringement.” ¹⁹

The first case the Judge cites is Liberty Media Holdings v. Swarm Sharing Hash File. ²⁰ The Court here does discuss this issue, citing to the above cases of Mitchell Brothers and Jartech, but all of this is contained in a footnote, and is pure dicta. Even the Court states “[t]his issue, however is not presently before the Court and the Court expresses no opinion on it here.” ²¹

Next up is the case of Next Phase Distribution, Inc. v. Doe. ²² It mostly cites back to Liberty Media, which, as we have already seen, does not really stand for the proposition it is cited for, and in fact reaches no conclusion on the issue. So does this case, stating:

“Although the Court recognizes that the law is unsettled regarding whether pornography may legitimately be copyrighted…the fact that Next Phase is the registered copyright owner…satisfies the requirement of a prima facie showing of copyright infringement.” ²³

Also frequently cited is the case of Devils Film, Inc. v. Nectar Video. ²⁴ Here, the Court, in declining the Plaintiffs request for seizure of the Defendant’s infringing copies of such titles as “Straight Anal” “Lesbian” and “Transsexual,” the Court, on its own volition, and viewing three out of the 200 total titles, declares them all to be obscene. ²⁵ Yet the Court states this:

“Since this is only an application for preliminary relief, the Court need not decide if obscenity is a defense to a claim of copyright infringement.” ²⁶

So what we have here is a bit of circuitous reasoning, in which three cases cite to each other for a proposition that is never actually ruled upon. This is sort of like media reports that a topic in the news is “controversial” merely because lots of people are talking about it.

Indeed, the ruling of the DC District Court gives off the feeling of a cranky “get off my lawn” diatribe by a 75 year old Judge. ²⁷ His opinion that a normal BitTorrent Plaintiff would be entitled to the requested 3^rd party subpoena but one who trafficked in pornography was not, ²⁸ is a rather curious interpretation of the constitutional guarantee of equal protection under the law.