A DEFENDANT in an American legal case, who is being sued for the illegal downloading and filesharing of a blue movie, has put forward a novel legal defence: that you can’t put copyright on porn.

A production company Hard Drive Productions (yes, that is their name) is suing a number of users whose IP addresses were used to torrent copies of the film ‘Amateur Allure Jen’ through the BitTorrent filesharing system.

Hard Drive wrote to one such user, San Francisco resident Liuxia Wong, accusing her of being one such user – and promising to sue her for $150,000 in loss of earnings unless she was willing to pay $3,400 to settle the case.

TorrentFreak reports that Wong not only denies downloading the film (saying the film was only registered four weeks after the date of her alleged download), but doesn’t just settle there in her arguments against the case.

Wong points out that the ‘Copyright Clause’ of the US constitution gave Congress the power 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”.

The defence continues:

Early circuit law in California held that obscene works did not promote the progress of science and the useful arts, and thus cannot be protect by copyright.

The lawsuit then goes on to describe some of the scenes of the film – and argue that those scenes are “obscene” enough to be covered by the Californian precedent. (The full filing is available on Scribd.)

As Gizmodo UK summarises, if Wong is successful, the porn industry around the world – thought to be worth around $4 billion each year – could be destroyed, as copyright would effectively be abolished for all porn made in the United States.

It could also lead to courts being asked to make some difficult judgements: having to decide whether some visual sexual stimuli are ‘useful arts’ – and therefore whether they can actually be protected from unlimited sharing and distribution.