The strange case of Hard Drive Productions versus "anyone that the video company's lawyers suspect of illegally downloading its pornographic movies" has taken a new and interesting twist. One of the nearly 1,500 "Does" being sued for allegedly sharing a Hard Drive film online has resorted to what seems, at first glance, like a novel defense. In addition to her insistence that she never actually downloaded "Amateur Allure Jen," Liuxia Wong of Solano County, California argues that copyright law doesn't even apply to smut clips. They are not copyrightable, and therefore no infringement occurred.

The matter is quite simple, Wong's petition for declaratory relief explains to the federal court in San Francisco. Article I, Section 8, Clause 8 of the US Constitution defines the purpose of copyright: "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."

Notice the words "science" and "useful arts" in the aforementioned sentence? Since when did movies with acronyms like "P.O.V." or "M.I.L.F." qualify as either? Therefore, "copyright is authorized only for works which promote the progress of science and the useful arts," says Wong's lawyer from the firm of Murphy, Pearson, Bradley & Feeney.

"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," the brief also notes, then reiterates the point another seven times:

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.

Holy utilitarianism, Batman . . . is this true? Do the language and stated assumptions of the Copyright Act really exempt garden variety smut video from its protections? And if so, how are people being sued in porn file-sharing cases across the country?

Swarm questions

Before we wade too deep into these particular waters, it's worth noting that the great Hard Drive anti-piracy crusade is a fairly dubious affair. Last August, a California judge took a meat-axe to the company's claim that 188 alleged P2P downloaders could be sued together in one filing.

"Even if the IP addresses at issue in this motion all came from a single swarm, there is no evidence to suggest that each of the addresses 'acted in concert' with all of the others," federal Magistrate Judge Joseph Spero told the anti-piracy team of Steele Hansmeier. "In fact, the nearly six-week span covering the activity associated with each of the addresses calls into question whether there was ever common activity linking the addresses in this case."

Spero then reduced the case to one defendant. Undaunted, Hard Drive lawyers went to a different court in Washington, DC with another 1,500 Does, plus a generous dose of spleen for the advocacy group Electronic Frontier Foundation (EFF).

EFF is "opposed to any effective enforcement and litigation of intellectual property law," explains one of their latest filings. "A radical interest group," the tirade continues, EFF has a mission that is "radical, quasi-anarchist, and intrinsically opposed to any effective enforcement of intellectual property rights."

But the odd accusations don't help Liuxia Wong. Following her ISP's disclosure of her name, address, and telephone number to Hard Drive's lawyers, Wong received a letter demanding that she settle the action for $3,400 or face a $150,000 lawsuit. In response, she told Hard Drive's attorneys that she did not download the movie in question and that she did not know who did. Her ISP set up her Wi-Fi system, she said. She believed the Hard Drive letter was something of a shakedown.

"Plaintiff is informed and believes, and thereon alleges that Hard Drive knew that plaintiff would incur substantial costs and attorneys' fees if her deposition were to proceed, and used this information to extract a settlement from plaintiff," her attorneys say. They responded by challenging the very core of the case, the copyrights at issue in Hard Drive's films.

So lets take a look at these early California copyright decisions that Murphy, Pearson lawyers say lend credence to their legal case. In correspondence with Ars, they pointed to two.

Black rooks and hotties

In 1867, California's federal circuit court system heard the case of Martinetti v. Maguire. The latter was a playwright who brought suit against the former, in large part because Martinetti's ribald play "The Black Crook" appeared to be little more than a cheap knockoff of Maguire's earlier play "The Black Rook." But a judge overseeing the matter saw little point in pursuing the case much further, because neither production could be construed as a copyrightable work:

Now it cannot be denied that this spectacle of the Black Crook only attracts attention as it panders to a prurient curiousity or an obscene imagination by very questionable exhibitions and attitudes of the female person. True, the lawfulness of such an exhibition depends upon the law of the place where it takes place. But when the author, inventor or proprietor thereof asks the power of this Court to protect him in the exclusive right to make such an exhibition under the copyright act, the matter assumes a very different aspect.

Thus, with a drama "which is grossly indecent, and calculated to corrupt the morals of the people," the judge continued, its exhibition "neither 'promotes the progress of science or useful arts,' but the contrary. The constitution does not authorize the protection of such productions, and it is not to be presumed that congress intended to get beyond its power in this respect to secure their 'authors and inventors the exclusive right' to the use of them."

"Upon this ground," the judge concluded, "I very much doubt whether the spectacle of the Black Crook is entitled to the benefit of copyright, even if it were admitted that it was a 'dramatic composition'."