For years Japan's leading producers of pornographic movies have been battling to protect their content overseas. In particular they have focused on Taiwan where websites openly sell their videos and TV channels air their content without permission. The studios eventually took legal action, but to no avail. This week prosecutors made the decision not to prosecute any of the alleged pirates, ruling that since pornography is obscene it isn't worthy of copyright protection.

For years producers of porn movies in Japan have bemoaned the lack of protection their content has received in Taiwan.

In 2010 things came to a head. The leading producers of the 20,000+ adult movies released in Japan each year warned Taiwan that if it didn’t get tough on pirates selling their content on websites and even airing it on TV, legal action would follow.

In a sign of how desperate they had become, the Japanese companies added that if they had no remedy under copyright law, they would sue the pirates for spreading obscene material and damaging the health of Taiwan’s children.

As crazy as it sounds this approach had the potential to work. While authorities have done nothing to protect copyrights of adult material, they do arrest people for distributing obscene material. However, the authorities came to a decision this week and it was bad news all round for the porn companies.

The Taipei District Court Prosecutors Office announced that it would not be pressing charges against any of the Taiwanese companies accused of committing copyright infringement.

The lack of action lies with the current state of the law. Taiwan’s copyright legislation allows downloading within certain limits and uploading within much tighter ones, but does not allow reproduction or distribution of other people’s content on a large scale. However, while regular movies, music and other arts receive protection, porn is very much a second class citizen, and here’s why.

In 1999, Japanese porn producers launched a copyright infringement lawsuit against Taiwanese pirates in the hope of holding them accountable for profiting from their content, but the case proved counter-productive. The Supreme Court decided that since porn movies are obscene they should not be entitled to protection under copyright law. The Prosecutor’s Office saw no reason to challenge that ruling this week.

Furthermore, the adult producer’s claims that the pirates were spreading obscene material and damaging children didn’t gain any ground either. The prosecutors decided that since the pirate sites displayed warnings and blocked minors from accessing their websites then there was no case to answer there either.

The notion that porn shouldn’t receive copyright protection was aired in the United States last year in connection with the thousands of copyright troll lawsuits currently overrunning the nation’s courts. Unfortunately the case was closed before that question could be answered.