File-sharing and the unlicensed distribution of copyrighted works has been the subject of a massive amount of copyright litigation. Copyright trolls argue “willful infringement” as the basis for legal action, which almost always results in settlements. Defendants are eager to avoid the costs of litigation and pass on the obligation of paying statutory damages. Plaintiffs prefer the more certain and profitable outcome of a settlement to the tiresome necessity of proving standing.

Yet, it would appear that one such defendant has decided to challenge copyright trolls over the bullying on the ground that there should be no copyright protection for the particular downloaded works. Hard Drive Productions had sued Liuxia Wong over the illegal downloading of Hard Drive’s adult work “Amateur Allure Jen.” Ms. Wong chose retaliation and is now suing Hard Drive seeking declaratory relief against Hard Drive’s harassment. Ms. Wong is arguing that she did not download the adult work and that she could not infringe on Hard Drive’s copyrights as “Amateur Allure Jen” is not entitled to copyright protection.

The strength of a defense based on the non-copyrightability of pornography rests on whether pornography promotes the progress of science and useful arts as prescribed by the Copyright Clause of the U.S. Constitution. An argument in favor of refusing copyright protection is the very reason why copyright protection is granted in the first place: it gives incentives for creation. Allowing copyright protection on pornographic works, then, would only give more incentive for pornographic creations. One may ask why a pornographic movie would not promote useful arts as much as, say, Mel Gibson’s Apocalypto. Morality has had a surprising impact on assessing the usefulness of a creative work.

More often protected under freedom of speech, pornography still divides courts on the question of its protection under copyright law. So far, two circuits have held that obscenity could not be a defense to copyright claims. See Mitchell Bros. Film Group v. Cinema Adult Theater, 604 F.2d 852 (5th Cir.1979); Jartech v. Clancy, 666 F.2d 403 (9th Cir.1982). In Mitchell, the Fifth Circuit indeed held that “protection of all writings, without regard to their content, is a constitutionally permissible means of promoting science and useful arts under Congress’ copyright power….” A court in the Southern District of New York, however, has refused to follow the Mitchell holding and relied on the doctrine of “clean hands” to deny copyright protection to works seen as obscene. Devils Films, Inc. v. Nectar Video Under, 29 F.Supp.2d 174, 175 (S.D.N.Y. 1998). Under this doctrine, a party is denied remedy when it did not act in good faith with regards to the subject of the lawsuit. In Devis Films, the court reasoned that based on the plaintiff’s complaint, there was probable cause to believe that the plaintiff was violating a federal statute prohibiting the business of selling obscene material in interstate commerce. Id. at 175. For this reason, and based on the court’s finding that plaintiff’s works were obscene, the court denied plaintiff’s claim of copyright infringement. See id. Interestingly, the court in Mitchell had held that obscenity was not an appropriate defense in an infringement action, “whether piggybacked on an “unclean hands” rubric or introduced in some other manner.” 604 F.2d at 863,

The claim that conformity to “good” morals is an obstacle to intellectual protection is not limited to copyright issues. Sex toys were once refused patentability because their immoral character prevented them from satisfying the utility requirement of patent protection. In the trademark context, the Lanham Act provides that “[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it … consists of or comprises immoral, deceptive, or scandalous matter….” 15 U.S.C. § 1052. But as morality evolves over time, what is considered immoral today may be considered as copyrightable material in the future. Penguin’s decision to publish D. H. Lawrence’s novel Lady Chatterley’s Lover once gave rise to (one of many) obscenity trials. The novel is now considered a cultural landmark of the sexual revolution of the 1960s.