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What is BitTorrent?
• Successor to Grokster’s decentralized peer-topeer file sharing model
• BitTorrent is a file-sharing protocol by which users simultaneously upload and download files – often, copyrighted content – in small pieces, which, once downloaded are assembled into the final song/movie.
• Each torrent is assigned a hash by the NSA – so while there may be four torrents for Texas
Chainsaw Massacre, each will have a unique hash www.randazza.com

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Consequences of BitTorrent
• Though the initial swarm of sharers does not last long, it has the potential to create limitless copies of the pirated content, especially since they need only to upload small pieces of the final file.
• Downloads of pirated content can outstrip legitimate sales of a DVD, especially in the adult space, by thousands of thefts per each legitimate sale (a 1,000+ : 1 ratio).
• Brands established on the quality and exclusivity of their content are damaged due to poor quality rips of original material and ubiquity of content.
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II.
THE BIRTH AND DEATH OF TORRENT
LITIGATION www.randazza.com

• Based on RIAA model of pursuing individual
“sharers” of copyrighted material.
• Find IP addresses (usually with 3d party vendors)
• File suit against IP addresses
• Move for early discovery (requires ISP’s give notice to subscribers under Cable Privacy
Protection Act)
• PROFIT!!!
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• Many courts find issue with plaintiffs joining thousands of defendants nationwide and suing where a few (if any) are located.
• Courts expect parties to find where IP addresses are based for the purpose of determining personal jurisdiction.
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• Plaintiffs retool and sue Doe defendants in
“swarms” that share the same torrent and are all within the same state.
• Courts push back on “swarm” theory when defendants’ actions are days or hours apart.
• Courts then claim that an IP address in the forum state is insufficient to show personal jurisdiction is proper.
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• Lawyers putting profit over long-term client interests damage the end-user litigation model.
• Malibu Media LLC’s cases set for “bellwether” trial in E.D. Pa.
• John Steele’s outfit (Prenda Law) threatened with sanctions over mysterious “Alan Cooper” – potential identity theft of Steele’s gardener to set up shell St. Kitts’ copyright-troll companies.
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• Adult companies become defendants and targets for overzealous copyright defense attorneys (more on this next).
• Negative PR for adult companies involved; judicial hostility to adult copyright enforcement generally.
• Viable, effective litigation model entirely killed by very small pool of bad actors.
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• Adult companies… and that’s it.
• Adult enforcement of copyrights set back by at least a decade: litigation model is dead; attorney conduct made courts skeptical, if not hostile, toward adult suits.
• Litigation campaign spawned new theories to undermine protection of erotic speech.
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• Freetards and the Academy have aligned to question whether porn is even entitled to copyright protection.
• For both, an answer in the negative would remove an important incentive to create content they find objectionable.
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• YES!
• This is an old question that has been
repeatedly answered in the affirmative
• Freetards raise this issue for one myopic reason: Defending their thieving clients without regard for the 1 st Amendment.
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• Under the 1976 Copyright Act, any “original work” is copyrightable. 17 U.S.C. § 102.
• The test for copyrightability is its originality.
Bleistein v. Donaldson Lithographing Co., 188
U.S. 239, 249-50 (1903).
• Copyright is an objective test based on original contents. Content is irrelevant.
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• U.S. Const. Art. I. § 8 cl. 8 – the Copyright
Clause.
• Allows for congress to make works protecting and furthering science and the
“useful arts”
• Detractors argue that adult entertainment is not a “useful art” and not entitled to copyright protection.
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• Broder v. Zeno Mauvais Music Co., 88 F.74
(N.D. Cal. 1898)
• Court held that the phrase, “She’s the hottest thing you ever seen” was obscene and therefore not copyrightable. However, writer could reapply if the lyrics were removed www.randazza.com

• Devils Films Inc. v. Nectar Video, 29 F. Supp. 2d
174 (S.D.N.Y. 1998) declined to enforce injunction due to “obscenity” of content.
• Nova Productions, Inc. v. Kisma Video, Inc.,
Case No. 02 Civ. 3850, 2004 WL 2754685 at * 3
(S.D.N.Y. 2004), righting the wrong of Devils
Films.
• “Obscenity alone does not resolve [copyright] claims in [defendants’] favor.” Nova Prods.
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• Mitchell Brothers Film Group v. Cinema Adult
Theater, 604 F.2d 852 (5th Cir. 1979).
– “It is immediately apparent that limiting copyright protection on a broad public injury rationale would lead to absurd and unacceptable results.”
• Jartech, Inc. v. Clancy, 666 F.2d 403 (9th Cir.
1982).
– “Acceptance of an obscenity defense would fragment copyright enforcement, protecting registered materials in a certain community, while, in effect, authorizing pirating in another locale.” www.randazza.com

III - A.
CHALLENGES TO COPYRIGHTABILITY IN
THE COURTS www.randazza.com

• Liuxia Wong brought suit against Hard Drive
Productions, which had sent her a demand letter based on her IP address being listed as a defendant in one of its cases.
• Among other claims, Wong sought declaraory relief that porn was not copyrightable because it is not a “useful art” protected by the copyright clause.
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• Wong’s argument was based a footnote in a D. Mass. decision, which discussed the history of porn’s copyrightability.
• Wong’s argument was based on old law that had not been explicitly overturned.
• Settled after Defendant’s Motion to Dismiss was denied, but before reaching copyrightability.
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• D. Colo. BitTorrent case turned upside-down by pro se defendant’s counter-claim.
• Defendant Jeff Fantalis sought declaratory relief that pornography not copyrightable because it depicts “criminal conduct.”
• FALA filed amicus brief citing to 7 th Circuit case which held “even illegality is not a bar to copyrightability.” (MyVidster v. Gunter) www.randazza.com

• Class Action case against numerous
California-based companies engaged in
BitTorrent litigation, filed in…W.D. Kentucky!
• Class alleged RICO (racketeering) based upon adult companies “extorting” settlements from individuals based on nothing more than IP addresses.
• Case is still in early stages.
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• FALA filed amicus briefs in Colorado and
Massachusetts consolidating precedent showing that pornography is copyrightable
• Educated Courts, attorneys and the public that copyright is not content-based.
• Filing amicus briefs is important to protect adult companies (and anyone with “objectionable” content) from an attack on their First
Amendment freedoms.
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III - B.
ACADEMIC CHALLENGES TO
COPYRIGHTABILITY www.randazza.com

• In the legacy of Andrew Dworkin and Catharine
MacKinnon, Ann Bartow published “Copyright Law and Pornography” in the Oregon Law Review
• Bartow’s law review article compares pornography to the illegal, unregulated prostitution industry.
• Bartow claims that any industry that “harms women” (like prostitution) is criminal and undeserving of copyright protections for its creations.
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• Bartow ignores the adult industry’s safeguards, both voluntary (model releases) and mandatory (2257), which are wholly different than illegal sex trade.
• One study says female performers happier than average women.
• Pornography is protected speech under
Freeman. Even if it were criminal to produce, it would receive copyright protection.
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Copyright litigation is swiftly changing into a battle against the adult entertainment industry that threatens to take away free speech protections. FALA must continue to advocate for pornography’s copyrightability and use honest litigation tactics in fighting infringement. www.randazza.com