osewalrus (osewalrus) wrote,
osewalrus
osewalrus

Hard Cases Make For Messy Law: Vivid v. Pornotube

Ah, the places we intrepid legal bloggers go to resolve the sticky legal questions that arose us. I mean -- arouse our curiosity! And what better to draw the legal attention, purely in the line of duty, than the lawsuit of Vivid Entertainment v. Pornotube.

For the sake of discretion, I shall avoid any links to the websites in questions. Strictly legal discussion (and further single entendre's) below the belt, err...fold.


As described by this
extremely respectable Reuters piece (which I only read for the articles), Steve Hirsch, the founder of Vivid Entertainment (I could pray he wasn't really a Jewish pornographer, but it wouldn't help, maybe he's not a left wing Democrat from NYC?) is suing Pornotube and other sites for the sharing of pornographic material. As the Reuters piece notes, the lawsuit is very similar to the lawsuit brought by Sumner Redstone (man, we Jews really do control the media) against Youtube.

There are, however, some differences that create an, ahem, explicit difference between the two. (I shall leave aside the 18 USC Section 2257 on the grounds that it seems doubtful to me that it creates a private right of action). Notably, in the impact of whether online pornography is a "teaser" for video pornography or a substantial substitute for same. Or, as Hirsch puts it: "Two or three minutes -- that's all you need....After watching two or three minutes of hard-core sex, you're not going to go and buy the full movie."

The question is, from a fair use perspective, does size really matter? Fair use considers, among other things, whether the portion of the work in question can serve as a substitute for the actual product. This raises a fascinating question in that the Miller v. California standard for obscenity basically says that if:
* the average person, applying contemporary community standards (not national standards, as some prior tests required), must find that the work, taken as a whole, appeals to the prurient interest;
* the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and
* the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

So, if the work can essentially be replaced by a 2-3 minute clip, I think it fails the Miller v. California test. In that case, is it even protected by copyright law? Or does the fact that obscene speech does not usually receive federal protection of any kind prohibit the application of copyright law in this case?

I shall be watching these developments with intense interest. Solely in the interest of legal blogging!
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