Another Porn Downloading Lawsuit

illegal downloading lawsuitThere’s another live one from the porn downloading lawsuit files. Filed at the end of January, in the Northern District of California, Liuxia Wong submitted a claim against Hard Drive Productions, Inc. and Does 1-50.

It Started Like Any Other Porn Downloading Lawsuit…

Wong’s porn downloading lawsuit started like they normally do; Liuxia received a settlement letter demanding $3,400, for an act of alleged online copyright infringement occurring on March 28, 2011. The communication explained that Wong could be forced to pay $150,000 if she didn’t settle; it also cautioned that an unsecured wireless router was not a defense.

True to their word, after Wong refused to pay up, Hard Drive filed a copyright complaint on April 22, 2011. Joseph C. Spero – a judge with what could be described as anti-copyright troll leanings – was assigned to the case. Soon after, Hard Drive withdrew their suit without prejudice – meaning they could file again.

But Wong decided to sue back.

Oh, Look! Some Sound New-ish Defense Arguments for Porn Downloading Lawsuits

Wong’s case cites several common illegal downloading defenses. For example, the improper enjoinder argument was used, which highlights that the defendant is receiving the “benefits and services of the court” without paying the proper $350 filing fee.

On behalf of Wong, Yuen also claimed the defendant spat in the face of civil statute L.R. 3-16(b)(1) – which covers certain financial discoveries – by not disclosing that Paul Pilcher owned more than 20% of Hard Drive-associated shares.

Yuen also turned to U.S. copyright statues. According to section 17 U.S.C. Section 504(c), a party cannot collect if infringement happened after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work. Since the known published date of the title in question (“Amateur Allure Jen”) was March 3, 2010, and the film wasn’t registered with the copyright office until April 22, 2011 – Wong may trump Hard Drive on a technicality.

In addition to a few other standard porn downloading defenses, accusations of using an unlicensed private investigator and failing to follow proper protocol by first sending a DMCA Takedown notice to the BitTorrent seeders, also appeared in the lawsuit.

…And Then There’s The Porn Isn’t Copyrightable Defense

In addition to the above, Wong highlighted that Article 1 Section 8, Clause 8 of the U.S. Constitution (a.k.a., the Copyright Clause) states that congress is empowered “To promote the Progress of Science and useful Arts by securing for a limited Times to Authors and Inventors the exclusive Right to their respective writings and discoveries.” Yuen the reasons that since pornography doesn’t “promote useful art or science,” it shouldn’t be copyrightable in the first place. The plaintiff’s claim takes it one step further by suggesting that “[t]o create the work, Hard Drive and its agents and/or employees violated laws which prohibited pimping, pandering, solicitation and prostitution, including any claims of conspiracy.”

This last point is a new one — and bound to spark legal debate. After all, using the “porn should be illegal” raises some First Amendment concerns.

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