FALA Asks Court to Dismiss Claim Porn Is Not Copyrightable

Aug 14, 2012 11:30 AM PST

DENVER — The First Amendment Lawyers Association filed a friend-of-the-court brief yesterday in a case that raises the position that porn is not copyrightable.

The case, which has its roots at federal court in Denver, involves a porn BitTorrent piracy defendant who has made counterclaims in relation to a suit filed against him by Malibu Media.

The piracy defendant, who is now asking a federal judge for $1 million in damages as well as an order declaring Malibu Media's copyrights invalid in relation to the suit filed against him, has called Malibu Media a "copyright troll" that seeks to "pervert the mechanisms" of justice.

But FALA, in an amicus brief filed by its national secretary Marc Randazza seeking an order to dismiss the piracy defendant's counterclaims, said that any notion to declare copyrights invalid because of any connected activity outside the scope of creative works, including the business of going after alleged copyright infringers, could "cast an impermissible pall over both copyright law and the First Amendment."

If accepted, Randazza said, a judge's declaration over the issue could impose new restrictions, or revive long-discredited ones, on what constitutes a “useful art” under the Copyright Clause.

Porn distributors, in particular, would be hit hard hit with a decision going against Malibu Media that Randazza maintains could lead to censorship.

"[The defendant's] position contradicts the Copyright Act and seeks a sweeping, content-based restriction on what genre of works are entitled to copyright protection," he wrote. "This restriction would, if accepted, not only create a Constitutional problem, but a practical one — fragmenting copyright law on the basis of local community standards."

The defendant making counterclaims is Jeff Fantalis, of Louisville, Colo., who was sued along with two others last April for poaching and trading as many as 107 Malibu Media videos after refusing to settle copyright infringement claims.

Fantalis later charged in counterclaims that Malibu Media abused court procedure, invaded his privacy, defamed him, inflicted emotional distress and committed fraud on the Copyright Office.

He noted that Malibu Media is simply a shell corporation and not the author of the films at center of the suit. "In these cases of mass copyright infringement litigation, shell corporations are created in order to buy and register the copyright for pornographic films solely for the purpose of bringing such litigations as this one," Fantalis attorneys wrote in the counterclaim.

To illustrate its business model, Fantalis counsel maintained that Malibu Media registered the movies within two months of the dates of alleged infringement and that the "short span of time between [Malibu Media's] apparent registration of the copyrights and the instant litigation makes it clear that the [Malibu Media] deliberately purchased and registered these particular films with the sole intent of bringing action the John Does it was gathering information about."

As a result, Fantalis attorneys said, Malibu Media was not seeking to protect a valid copyright when it made an application to the U.S. Copyright Office, but rather it was seeking to “pervert the mechanisms of the federal government to its own uses.”

Randazza, an adult industry attorney who leads the Las Vegas-based Randazza Legal Group, noted that if Fanatalis' is successful "casualties of such legal poison will be far-reaching and indiscriminate."

"While the copyright limitations Fantalis seeks may start out aimed at the adult industry, and potentially even solely affecting it, it is certain that it would bleed into other creative sectors and discourage their production as well," he said.

"If we allow the use of censorship as a tool to lash out against an industry that one litigant finds unsavory, the costs will be immeasurable."

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