As the question about pornography’s eligibility for copyright protection becomes hot, Marc Randazza attempts to put down the fire… he helped to ignite

Posted: August 16, 2012 by SJD in Community contributions, M. Randazza
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I am aware of at least five occasions, when the question “is pornography eligible for copyright protection?” was raised in court documents by defendants, attorneys and even judges over the past year. When Steven Yuen, in his counter attack on Prenda and Hard Drive Productions, introduced this idea as an affirmative defense, it caused a mini-hurricane in online media, especially in that connected to the adult entertainment industry. Indeed, this industry is religiously fearful of consumer piracy, and it takes for granted that file sharing is the main reason behind the Smut Empire’s decline over the last decade. No surprise that almost every industry insider believes that losing copyright protection would forever devastate the magic kingdom of fake boobs and artificial moans. Marc Randazza, who made his name as a free speech advocate and a defender of copyrights on such timeless masterpieces as Jeff Cums in Colby’s Mouth, was not silent at that time either, but he stopped short of entering the legal arena and venting his righteousness in courts.

This week something has seemingly changed: a similar suggestion — that copyright does not cover obscene materials — has prompted Randazza to intervene. This clause was just one of many defenses found in the counterclaim filed by a pro se defendant from Colorado Jeff Fantalis. In response, Randdazza, formally representing the First Amendment Lawyers Association (FALA), filed an amicus curiae brief. This document is an interesting read, although, just like the majority of the latest Randazza’s write-ups, this one did not avoid his hallmark hypocrisy. For example, he writes about the consequences of copyright abolishment for pornography:

The casualties of such legal poison will be far-reaching and indiscriminate,

In fact, the same statement is quite applicable to Randazza’s activities as a copyright troll.

Although I said that “something has changed,” I don’t believe that any single event has triggered the involvement of Randazza/FALA; it was rather an emerging pattern that woke up the man who is capable of seeing that the legal foundations of the porno industry are not as solid as they seem, and if nothing is done, things may turn out grim for pornographers. Ironically, our “visionary” is among those people who helped escalating this problem in the first place.

I’m never tired of repeating that those adult producers who have sided with copyright trolls and approved terror and extortion, are not only shooting themselves in the foot, but also pushing their colleagues towards a dangerous chasm. It is very upsetting, because the majority in this industry understands the perils of the indiscriminate assault on the customer base. This smarter part of the industry regards the actions of few lowlifes as shortsighted and moronic.

Many copyright troll victims are not silent lambs and they often push back and, not surprisingly, employ methods they find handy, not necessarily the methods that Legalese-speaking trolls expect. Questioning whether porn should enjoy the copyright protection is one of “asymmetric” responses, and only a tip of the iceberg, although this particular tip is big enough to nickname the entire adult entertainment industry ship Titanic.

The fact that Randazza has entered a lawsuit filed by the very people that he and his caste loathes (Lipscomb and his goon Kotzker), tells how far trolls managed to wander in their industry-destructing quest.

I would love to make sure that the rest of the FALA is aware of the following irony: out of more than 180 members, the one who hurried to defend the rights of the Smut Guild is one of those responsible for the emerging mess.

So… there is not much else to add. I just want to stress one more time that my speculations are not about the copyrightablity of porn per se, but about the reasons why this battle is currently raging on and who has started it. If I was alone in my conclusions, I would probably feel uncomfortable making such bold statements, but as I look around, I see that the majority thinks the same way. Below are just two random comments out of many from the discussion board:

Drifter 2012/08/14 at 3:25 pm wrote:

Randazza and the other copyright trolls brought this on themselves by abusing the court system with their predatory litigation practices. While I am definitely not one for censorship or limiting the ability of people to create works, even adult ones, I cannot help but be amused that the court system that the trolls and their adult film clients abused so egregiously of late could now potentially destroy them all if pornography is ruled to be uncopyrightable. That’s what they get for being greedy shortsighted douchebags.

Anonymous on 2012/08/14 at 4:04 pm wrote:

Exactly. I doubt anyone would have seriously considered this issue if not for copyright trolling by the adult industry. Even if they were filing copyright lawsuits along traditional lines (copied script, going after bootleggers who are profiting from selling copies, etc.) this probably would never have come up. But now that we have seen the adult industry turn to copyright law to run a criminal, for-profit extortion scam, we even have judges spontaneously questioning the copyrightability of porn. I think what we are seeing here is the judiciary acting like a parent trying to reign in a child, basically saying “look, we gave you guys a little more privilege and responsibility, we thought you had grown up enough to handle it, but it looks like maybe we’re going to have to take it back.” Copyright trolls have been pushing the legal system to its limits, daring courts to find ways to stop them, and this is what they have provoked in response. To have a judge spontaneously question the copyrightability of porn must have these guys shitting bricks, as it is a very clear warning that the judiciary’s patience is running out. I’ll bet if you looked at all copyright lawsuits brought be the porn industry in US history, by now less than 10% of them are non-trolling lawsuits, so clearly this is an industry that has shown a lack of respect for its access to the courts.

I do not believe pornography should be treated any differently than other media, and I doubt porn would be found to be uncopyrightable if this went all the way to the Supreme Court. The danger here for xbiz and the trolls isn’t whether the ultimate outcome would be in their favor on not, but that they have now crossed into the danger zone of provoking the legal battle that will cost them years in court and millions in attorney’s fees. The funny part is that the trolls won’t be the ones who suffer the most for their own bad behavior. Sure, if this shuts them down they’ll lose out on potential future troll revenues but they won’t pay out of pocket; they’ll slink off with their cash and leave the bigger players in the adult industry, who have the most to lose, to pay the legal bills.

I’ll give Randazza credit, at least he’s on the forefront here after being one of the players responsible for stirring shit up as a copyright troll. Don’t expect to see guys like John Steele, Mike Meier or Ira Siegel jumping in to clean up their own mess (not that they could do more good than harm if they tried). But Marc is a guy I expect to see in it to the end.

Trolls have summoned even more potentially destructive forces

Last thought and yet another long quote from Reddit. This time the author analyzes another grave problem (courtesy of copyright trolls) that adult industry will have to deal with earlier or later.

dendropsophus says:

Adding to your argument about harm done to the industry, remember that porn used to be very much a mob-run business (Deep Throat was financed and distributed by the Mafia). Much like the casinos in Las Vegas, the adult business has made a huge effort over the years to dissociate itself from that image and rebrand itself as professional, honest, and legitimate.

But a lot of older people, many of whom vote and live in Florida, the swing state par excellence, remember how things used to be. If the copyright-shakedown racket proliferates enough that the subject gets some more mainstream media coverage (or if enough victims like Fantalis are not too ashamed to fight back), the industry’s image could suffer enough damage that the legal and political climate surrounding obscenity could shift very quickly. (Expect to see more pandering similar to Romney’s advocacy of mandatory porn filters on computers, but from both major parties.)

It’s inevitable that free downloads will continue to get easier and more anonymous, and the adult industry has to adapt to that. But ethically-challenged extortion rackets are a real (and avoidable) existential threat to their business, and more people who work in the industry need to realize that.

I hope that those who work in the industry, those who at least try to listen to us, and not to convenient straw men (“boo! you defend thieves!”), understand that we are not enemies. Even occasional file sharers are not their enemies either, and those “pirates” (read: potential customers) don’t deserve such a cruel and disproportionate punishment they receive. The real enemies of both consumers and the entertainment industry are worm-tongued trolls who care about nothing but a quick buck at the expense of ruined careers, families, and lives on one side; and failed businesses on the other.

Update

08/23/2011

Jeff Fantalis filed an opposition to FALA’s (in fact Randazza’s) amicus curiae brief. He argues two main points:

1. It is not appropriate to ask a judge to rule sua sponte on the porn copyrightability issue, which is essentially a jury question: obscenity is a community standard and only jury can decide.

2. [Most important] Fantalis points to the obvious financial interest of FALA in the outcome of this litigation, which is clear even from the reading of the brief itself: FALA have been representing adult industry for a long time, and many of its lawyers participated in copyright trolling.

For FALA, this case isn’t about freedom of speech; it’s about money.

Couldn’t agree more.

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Comments
  1. Raul says:

    Best yet, fucking amazing. I was wondering who would blog first on the convergence between the FALA filing and the hypocrisy. Perfect.

  2. Anona says:

    Thank you for another excellent post.

    Q: What is a hypocrite???

    A: Marco Randazza

    Q: What is a Marco Randazza???

    A: Pure unadulterated greed personified

    Anyway, karma is a virgin, if it were a female canine, it would be easy.

  3. Anonymous1 says:

    Interesting how Mr. Randazza conflates freedom to express with opportunity to profiteer.

  4. Irritated Troll Hater says:

    I totally agree; ‘pirates’ are not the enemy. The real enemy to the adult industry are these copyright trolls. Yes, some ‘pirates’ do copy and re-sell the movie for profit, but not all. Not by a long shot. Most ‘pirates’ who download (watch the movie or listen to songs), either delete the file(s) or burn a disc for their personal use. But, lets not forget that after downloading, some ‘pirates’ will go out and purchase the dvd or cd if they like what they see/hear.

    Also, what is not being mentioned that much (if any), is the advancement of technology. The more it grows, the more that come with it. If there were no such things as dvd’s, there would be no copying of movies. Same with cd’s. Everything would be paid content online. But, file sharing would be out there on the net and someone who purchased a scene, movie or song could do what is being done now and either way, people would get it for free. Basically what I’m saying is, file sharing is going to happen no matter what. It will not be stopped!!! For every file sharing site shut down, another pops up.

    The porn companies really need to evaluate themselves and this idea of hiring these trolls to gain more money. They need to understand that they are not only pushing away potential and faithful customers, but they are also going to seriously hurt their industry. They do need to adapt to the times and deal with the fact their content will be shared. There will always be money in their pockets because of the women. A lot of good looking women in that field and that is what brings in the money. Downloading may hurt, but not what they want you think.

  5. jdgalt says:

    The argument that porn can’t be copyrighted is essentially equivalent to saying (all of) it is obscene/illegal, which is at least effectively not true. (There are still some people at the “Justice” Dept. trying to find a jury that will convict someone for garden-variety porn, but they rarely succeed and hopefully will give up soon. Fortunately the Internet has made their job impossible even if Congress and the courts were to once again clearly support their position.)

    But I can think of two good reasons for porn’s decline that have nothing to do with either infringement or the alleged resurgence of prudery:

    (1) There’s only so much porn artists can really do or show. The field is pretty much exhausted, at least until they come up with good robots to extend the experience into more than two senses.

    (2) There are now all kinds of amateurs in the field, and a lot of their stuff can be seen for free. (I’d cite some blogs to make this point, but you’d probably feel the need to delete the links.)

    In short, the professional adult film industry, like Hollywood, is simply using so-called piracy as an excuse for their failure to serve their customers. Maybe if either or both groups would stop trying to outlaw free, anonymous speech on the Internet and start making better movies (without outrageous mechanical limits on how we can watch them), we’d buy them.

  6. gem2600 says:

    Thank all of you for your insights and comments.

  7. AC says:

    Fantalis has filed a motion in opposition to the Randazza’s amicus:

    Opposition to 56 MOTION for Leave to File Amicus Curiae Brief filed by Defendant Jeff Fantalis. (mnfsl, ) (Entered: 08/22/2012)

  8. Anonymous says:

    this is the best pro-se defendant ever. i love when smart people get messed with and fight back.

  9. The Tod says:

    Fantalis just crapped on Marc “Jazz Hands” Razzy’s parade with that reply to the FALA.

  10. [...] on behalf of the First Amendment Lawyers Association (FALA). This brief’s single topic was the claim that pornography belongs to the company of “useful arts,” and deserves copyright protection. My [...]

  11. [...] the “works” to be obscene, these “works” would not be subject to copyright protection. WOW. Marc Randazza must be saying some words at this moment: those words that usually cause 99% of normal people [...]

  12. [...] this is not ironic enough: this man shakes down tens of thousands (many of whom are innocent) over obscene material; his evidence is flimsy at best; and his fee-splitting agreements with porn purveyors and [...]

  13. [...] from certain (in part because ineligibility of pornography for copyright protection is asserted: expect Marc Randazza on a white horse). Nonetheless, I am happy to see that a former troll victim did not succumb to shallow threats and [...]

  14. Private Parte says:

    Don’t know if you saw this, but troll Randazza has penned an op-ed for CNN—”We need a ‘right to be forgotten’ online“.

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