We are unaware of any court or jury that has found Amateur Allure Jen to be obscene, but that has not stopped Wong’s legal counsel from making the claim that it is precisely that. We find the argument so … unique … that we reprint here the “obscene” claim as it appears in the plaintiff’s Amended Complaint, which was filed with the court Jan. 31, and is available below for those interested in reading the whole thing.
C. Hard Drive’s Work is Not Copyrightable
80. Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States 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 and Discoveries.”
81. Thus, copyright is authorized only for works which promote the progress of science and the useful arts.
82. Horizontal Stare Decisis or Circuit law binds all courts within a particular circuit, including the court of appeals itself. (Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1171—“[T]he first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals. … Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court” or ―unless Congress changes the law.”)
83. 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.
84. Subsequent non-en banc decisions by the Ninth Circuit failed to follow this prior circuit decision in California.
85. 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.
86. Hard Drive’s work does not promote the progress of science.
87. Hard Drive’s work does not promote the useful arts.
88. Hard Drive has judicially admitted that its work is adult pornography.
89. Hard Drive’s work depicts obscene material.
90. Plaintiff is informed and believes, and thereon alleges that to create the work, Hard Drive and its agents and/or its employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.
91. Hard Drive’s work depicts criminal acts and/or conduct.
92. Hard Drive’s work is not copyrightable.
Needless to say, the allegations that Hard Drive’s work “depicts criminal acts and/or conduct” and that in creating the work its employees “violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy,” and thus is not copyrightable, are highly problematic on several levels and will likely (hopefully!) be dismissed out of hand by the presiding judge.
But the Amended Complaint makes other more defensible arguments that may more effectively undermine Hard Drive’s case against Wong, which raises the question whether adding in the more fanciful charge that porn by definition cannot be copyrighted will work to undermine the entirety of Wong’s everything-but-the-kitchen-sink lawsuit. Judge Paul Singh Grewal can of course dismiss the outlandish charges without punishing the others, but it remains to be seen if he will.
Among the other charges made by Wong, who denies downloading the movie, is that Hard Drive did not register Amateur Allure Jen within the time frame required by copyright law.
“A party is not entitled to recover statutory damages and attorneys’ fees under 17 U.S.C. section 504(c) if the alleged infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work per 17 U.S.C. section 412,” the Amended Complaint charges.
But Wong also alleges in the Complaint that “Hard Drive represented to the U.S. Copyright Office that the work was first published on March 3, 2010,” but that “the work was registered on April 22, 2011.”
Wong argues, however, that the “alleged copyright infringement associated with plaintiff’s Internet Protocol (IP) Address occurred on March 28, 2011, which is more than three months after the work was first published on March 3, 2010, and which is before the work’s registration date of April 22, 2011.”
For the reason, Wong concludes that Hard Drive “is not entitled to recover statutory damages and attorneys’ fees.”
Wong also alleges that “Hard Drive never issued any D.M.C.A. takedown notices to the owners and/or operators of the Bittorrent trackers, because it and/or its agents were using them as honey pots so that they could continue to log IP address. Plaintiff is informed and believes, and thereon alleges that Hard Drive knew it could make more money by allowing its work to continue to be distributed instead of shutting down the Bit Torrent trackers.”
There are other allegations that allude to the original lawsuit by Hard Drive against 48 alleged John Doe infringers, as well as charges related to individual lawsuits filed Nov. 21 against Wong and other unnamed defendants, but the countersuit by Wong will probably be remembered for its attempt to make porn beyond the reach of copyright law. That’s something that a group like Anonymous would cheer, but not the industry that actually makes the stuff.
Wong’s Amended Complaint can be accessed here.