FALA Jumps Into Another Porn Piracy Suit Over Copyright Issue

Aug 20, 2012 9:45 AM PST

BOSTON — The First Amendment Lawyers Association has filed another amicus brief over the issue of porn and its copyright entitlements.

FALA on Friday jumped into the case Discount Video Center Inc. vs. Does 1-29 after U.S. Magistrate Judge Leo Sorokin raised the point that there is some question as to whether pornography can be afforded copyright protection.

Sorokin, writing in an order to quash subpoenas in a porn BitTorrent piracy case against the Does, said in a footnote “it is a matter of first impression in the First Circuit, and indeed is unsettled in many circuits, whether pornography is in fact entitled to protection against copyright infringement.”

The Does named in the suit filed in Massachusetts were alleged to have traded the 2005 adult video "Anal Cum Swappers 2" from Sin City's gonzo label Mayhem.

It's the second time in a week that the attorneys group has weighed in on the subject. FALA last week filed an amicus brief, or friend-of-the -court brief, in a case involving Malibu Media and several defendants.

In the latest amicus brief, FALA, whose national secretary Marc Randazza wrote the brief, said there is no basis for denying pornography or any other original creation the fundamental and equal protection of these laws. FALA also said there is no room for subjective preferences or moral compasses of the courts to determine which original works are accorded copyright protection.

"Entertaining this argument invites censorship in a realm where content has no bearing on legal protection," FALA said. "That this position has even been raised, however, shows that it is of great importance that this court render a strong opinion on the matter — an opinion that keeps us in modern times, and that affirms that pornography, like any other original work, is entitled to protection under the Copyright Act."

FALA noted that the mere suggestion by Sorokin that porn may or may not be copyrightable threatens to create "serious collateral damage by resurrecting a long-dead doctrine and threatening important free speech and intellectual property principles."

"Having raised a subject matter jurisdiction issue, the court must finish what it started," FALA said. "Once it engages in complete analysis, it will find that the question is indeed settled in favor of equal protection of all works, erotic or not."

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