SAN FRANCISCO (CN) - A woman claims pornography is not copyrightable because it is not a science or useful art even if she did download some porn, which she did not.
Liuxia Wong sued Hard Drive Productions in Federal Court, after refusing to settle its demand for $3,400.
Hard Drive claimed Wong's IP address had been used to download the porn flick "Amateur Allure Jen."
Wong denies downloading the title.
Hard Drive sent her a demand letter telling her "she may be liable for statutory damages of up to $150,000," but it would settle for $3,400, Wong says.
In her first amended complaint, Wong claims Hard Drive knew that Bittorrent trackers were transmitting its porn, but "never issued Digital Millennium Copyright Act (D.M.C.A.) takedown notices to the owners and/or operators of the Bittorrent trackers because it and/or its agents using them as honeypots so they could continue to log IP address[es]."
Wong says that even if she had downloaded "Amateur Allure Jen," there was no copyright infringement because obscene materials cannot be copyrighted.
"Article I, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: 'To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries,'" Wong says in her original complaint.
"Thus, copyright is authorized only for works which promote the progress of science and useful arts. ...
"Early circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protected by copyright.
"Subsequent non-en banc decisions by the Ninth Circuit failed to follow this prior circuit decision in California.
"Given the absence of any subsequent en-banc Ninth Circuit decisions, Supreme Court precedent, or changes in the Constitution that copyright is authorized for works which does [sic] not promote the progress of science and the useful arts, the subsequent Ninth Circuit decisions are void and do not constitute binding precedent.
"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.
"Hard Drive's work depicts criminal acts and/or conduct.
"Hard Drive's work is not copyrightable."
Wong's case has a somewhat tangled history.
She says Hard Drive originally sued her in Federal Court as one of 48 Doe defendants, and did so by improperly joining the defendants to avoid paying the $350 filing fee for each action. Hard Drive then applied for expedited discovery, seeking names, addresses, and telephone numbers of the Doe defendants from their Internet service providers.
With her identifying information in hand, Wong says, Hard Drive sent her the threatening letter, claiming she had to pay the $3,400 even if she did not download the pornographic material herself.
"In Hard Drive's settlement demand letter, it notified the plaintiff that she was liable for copyright infringement by merely having an unsecured wireless network/router even though plaintiff did not download the work, did not tell anyone to download the work, and did not know anyone was using her Internet service," her amended complaint states.