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Internet piracy suit asks: Can you even copyright porn?

The porn industry says it loses billions of dollars a year to Internet piracy, and one of its prime tactics to recover some of that money is to send letters to alleged downloaders threatening to sue them, thereby exposing their identities — and browsing tastes — in public records. 

Groups like the Electronic Frontier Foundation and the American Civil Liberties Union say it's nothing more than extortion. When such cases make it to court, they're usually thrown out, but the industry still sends the letters to tens of thousands of people every year on the assumption that some will settle — usually for $3,000 to $5,000 — because they're too scared to risk outing themselves as porn aficionados.

But a California woman is taking a different approach, according to Courthouse News Service. The woman, Liuxia Wong of Solano, sued first, hitting a studio called Hard Drive Productions on Monday with the argument that its demand for a $3,400 settlement was unconstitutional because porn is obscenity, and obscenity isn't protected by the Copyright Clause of the Constitution.

You can read Wong's suit in .pdf form here. It argues that:

Hard Drive's work does not promote the progress of science.

Hard Drive's work does not promote the useful arts. ...

Hard Drive's work depicts obscene material.

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.

Hard Drive's work depicts criminal acts and/or conduct.

As a result, she argues, "Hard Drive's work is not copyrightable" in the first place.

Msnbc.com traced how such piracy cases usually work last year:

The shorthand description of what plaintiffs' firms ... do is scour P2P networks to identify IP addresses that are downloading copyrighted material. 

In non-tech, that translates to looking for videos that are being distributed across decentralized peer-to-peer (hence, P2P) file-sharing networks called "torrent sites." Then, using geotracking technology (like the GPS in your car or on your smartphone), investigators harvest the numeric Internet protocol addresses of the computers that are retrieving and sharing them. ...

That requires sophisticated programming, because the computers linked into the torrent "swarm" go on and offline from second to second — and when they're plugged in, their IP addresses can also change second by second. 

A letter is typically then sent to dozens or hundreds of people at a time. The letter usually explicitly urges potential defendants to seize the opportunity to avoid litigation by settling before their names are published in a lawsuit. 

In some cases, the potential defendant turns out to be an otherwise innocent bystander. Many people still don't know to secure their wireless routers with password-protected encryption, leaving them open — and easy for anyone in the neighborhood to piggyback on. 

The industry shorthand for those people is "false positives," some of whom turn out to be 70-year-old grandmothers or ministers who had no idea the kids next door were feeding off their wireless systems.

One of the leading practitioners in this area of law, John Steele of Chicago — whose firm sent the original demand letter to Wong (you can read it here in .pdf form) — talked with msnbc.com at length about his strategy:

And yes, one of the goals is to "scare people," he said — not primarily into writing checks, but to stop them from "stealing our clients' content."

That's not a bad thing, Steele said, because piracy today is so easy that "the industry's really on its knees right now."

Lots of people may think his firm's methods are unfair, but adult entertainment companies are legal businesses with valid claims, and "we believe it's completely ethical and important to recover more money than the cost of the litigation," Steele said.

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