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.

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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.