Let's start at the conclusion.
Yes. In the US, copyright law protects even pornography.
It's settled law.
Smut is no different under copyright law than the finest literature or the best music.
So? Even the smuttiest smut can't be copied without the author's permission.
But - in his anger that a pornographer was trying to use his court to collect names of alleged downloaders to extort them - a 73 year old judge may have recently gone too far - suggesting that porn's protection under copyright law wasn't settled law.
In (justly) swatting down the copyright trolls, it sure looks as if the Judge may have (unintentionally) undermined copyright law.
Why does it matter? If the porn-producer-copyright-trolls lost?
It's the unintended consequences that have me worried.
I'm worried that one overzealous (and kinda creepy) Judge set a precedent that others with censorious intentions might soon try to use?
(Why do I say the Judge comes across as kinda creepy? First he seems to claim extensive knowledge of pornography - calling Strike 3's content not "run-of-the-mill porn". But then? He shifts to a weird moral high ground - calling their stuff "aberrantly salacious". Creepy.)
Back to my main point?
I thinks it's a mistake to build weapons to attack the trolls, if those same weapons can easily be turned around and used to attack artists who print or film or paint provocative or salacious stuff.
Here are the key facts:
In his November 2018 ruling, Judge Royce C. Lamberth, of the DC Circuit, took it upon himself to quash a federal copyright infringement lawsuit - even before the plaintiff had identified who they wanted to sue.
The case had started because a pornography producer, Strike 3 LLC, wanted to subpoena an internet company (an "ISP") to get the names and addresses of customers who they alleged had downloaded one or more of Strike 3's films illegally.
But Judge Lamberth wasn't inclined to humor the pornographers. And he made his reasons for dismissing their motion to require discovery - to identify the alleged illegal downloaders - very clear:
"Armed with hundreds of cut-and-pasted complaints and boilerplate discovery motions, Strike 3 floods this courthouse (and others around the country) with lawsuits smacking of
extortion It treats this Court not as a citadel of justice, but as an ATM. Its feigned desire for legal process masks what it really seeks: for the Court to oversee a high-tech shakedown This Court declines."
Judge Lamberth had heard about other porn producers (like the sleazy former lawyers behind the Prenda Group) whose business model was to seek discovery from ISPs for the names of thousands of individuals, only to threaten these thousands of internet users with exposure as porn fans and expensive copyright lawsuits unless they quickly settled.
I'm fervently against copyright trolls. They abuse the legal system to extort money from folks who might (or might not?) have downloaded porn.
But in his effort to get Strike 3 out of his batter's box, the Judge may have thrown a bit too hard and fast inside.
It's one thing to remind the copyright trolls that they need to respect his position and the courts. So? The Judge would be well within his rights to find that the plaintiffs could not use discovery simply to get names of people to shake them down - with no intention of actually following through in the courts.
But, the Judge hurled dangerous "chin music" (in baseball, "chin music" means a pitch that is thrown dangerously close to the batter's face) when he wrote in a footnote (on p. 7) that “it is unsettled in many Circuits - including this one - whether pornography is in fact entitled to protection against copyright infringement.”
The Judge is wrong.
The copyright protection afforded to pornography is settled law.
Everywhere in the US.
For a recent example, here's the relevant language in a decision from a 2012 7th Circuit Court of Appeals ruling:
“[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.”
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