“Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement.”

“[2] It is undisputed that Liberty Media is a distributor of lawful, albeit hardcore, pornography, and the Motion Picture is itself hardcore pornography. Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement. Copyright protection in the United States was “effectively unavailable for pornography” until the landmark decision by the Fifth Circuit in Mitchell Brothers Film Group v. Cinema Adult Theater, 604 F.2d 852, 854-55, 858 (5th Cir. 1979) (holding that the Copyright Act neither explicitly nor implicitly prohibits protection of “obscene materials,” such as the films at issue there, and rejecting the defendant’s affirmative defense of “unclean hands”). See also Jartech, Inc. v. Clancy, 666 F.2d 403, 406 (9th Cir. 1982) (stating, in the context of copyright infringement of a pornographic film, that “[p]ragmatism further compels a rejection of an obscenity defense” because “obscenity is a community standard which may vary to the extent that controls thereof may be dropped by a state altogether”). Compare Devils Films, Inc. v. Nectar Video, 29 F. Supp. 2d 174, 175-77 (S.D.N.Y. 1998) (refusing to exercise its equitable powers to issue a preliminary injunction against infringement of pornographic films and “commit the resources of the United States Marshal’s Service to support the operation of plaintiff’s pornography business,” holding that the films were “obscene” and illegally distributed through interstate commerce), with Nova Prods., Inc. v. Kisma Video, Inc., Nos. 02 Civ. 3850(HB), 02 Civ. 6277(HB), 03 Civ. 3379(HB), 2004 WL 2754685, at *3 (S.D.N.Y. Dec. 1, 2004) (holding that the question of whether particular pornographic films are “obscene” is one of fact for the jury, and that, even were the films deemed to be obscene, it would not prevent their protection under a valid copyright) (citing Jartech, Inc., 666 F.2d 403; Mitchell Bros., 604 F.2d 852). Congress has never addressed the issue by amendment to the Copyright Act. See Ann Bartow, Pornography, Coercion, and Copyright Law 2.0, 10 Vand. J. Ent. & Tech. L 799, 833 (2008). This issue, however, is not presently before the Court and the Court expresses no opinion on it here.”

From LIBERTY MEDIA HOLDINGS, LLC, v. SWARM SHARING HASH FILE AE340D0560129AFEE8D78CE07F2394C7 B5BC9C05; and DOES 1 through 38, Defendants. Civil Action No. 11-10802-WGY. United States District Court, D. Massachusetts. October 31, 2011 at footnote 2.

3 thoughts on ““Notably, it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement.”

  1. Congrats on the citation Ann! It’s an interesting opinion in many respects. Here’s one: why is the hash file named as a defendant? Did they sue it in rem? On what basis? The opinion doesn’t say.

  2. Bruce, it appears that the hash file was named as a proxy to help identify the alleged infringement. The hash file apparently identifies the plaintiff’s “lawful, albeit hardcore, pornograph[ic]” film, and also points to the swarm of torrent users who were allegedly reproducing and distributing the film, including the Does.

    From the complaint:
    12. The Defendants are a group of BitTorrent users or peers whose computers are collectively interconnected for the sharing of a particular unique file, otherwise known as a “swarm.” The particular file a BitTorrent swarm is associated with has a unique “hash” (a file identifier generated by an algorithm developed and implemented by the National Security Agency). The hash value in this case is identified as AE340D0560129AFEE8D78CE07F2394C7B5BC9C05 (hereinafter the “AE3 Hash”).
    * * *
    16. Each of the fictitiously named defendants engaged in their copyright infringement scheme together. They all shared and republished the same Motion Picture, and thus collectively participated in the same swarm sharing the AE3 Hash.
    17. The torrent swarm in this case is not an actual entity, but is rather made up [of] numerous individuals, located in various jurisdictions, acting in concert with each other, to achieve the common goal of infringing upon the Plaintiff’s copyrights both by illegally duplicating the Plaintiff’s Motion Picture and illegally distributing the Plaintiff’s Motion Picture.
    * * *
    19. Doe 1 used this IP address to illegally copy and illegally republish and distribute copies of the Plaintiff’s copyrighted Motion Picture through the use of the AE3 Hash to an unknown number of other individuals over the Internet.

  3. Thanks Jake, that’s helpful. Paragraph 17 is the key one. I missed that it’s the swarm that’s the defendant, not the hash file. It looks to me like they are claiming the swarm identified by the hash file is an unincorporated association, not an object being sued in rem. I don’t know that that’s very significant except that it helps bolster the joinder argument.

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