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Porn, Freedom, and the American Way!

April 17, 2010

Looking back, I’m somewhat astonished that I have never used this example in my polemics defending free speech against censorship, copyright enforcement, or both–especially in light of my last post–but I should take the time for its own separate post to point out just how awesome pornography is, from a free speech advocate’s perspective, of course.

Over the course of history, pornography has almost certainly been the most virulent, vibrant and vocal force in changing social mores in favor of freedom and away from authoritarian and Victorian fastidiousness.  For a long time, pornography was the case-in-point for most people that could effectively communicate the value of an open society.  Both before and after the glorious confluence of various political and personal revolutions in the mid-twentieth century, pornography has always been one of the few tangible examples that could highlight the need for freedom of speech for average apolitcal Americans.  Pornography dug down and fought legal battles tooth-and-nail to preserve their right to show people tit-and-tail.  In fact, pornography defines much of the contours of First American jurisprudence to this day.  Pornography is just one of those examples of where vested money interests and what’s best for society blessedly align.

And now, in an ironic twist, pornography appears to have positioned itself (no pun intended) to take another great stride toward getting people to understand the need for similar Copyright freedom.  That prospect is surprising given that pornography is entirely composed of copyright holders and is losing a serious battle to the copyright-infringing hordes of the Internet.  But take a look at this video and see if you can catch my drift:

If you didn’t already figure it out, that video is a perfect example of a derivative work that probably wouldn’t fall under the currently established standard of a fair use and could therefore be liable for infringement.  Current fair use analysis would ask a judge, laden with his or her own political and moral prejudices, to weigh the following factors in determining whether the work is an infringing derivative work or a protected fair use:

  1. the purpose and character of your use
  2. the nature of the copyrighted work
  3. the amount and substantiality of the portion taken, and
  4. the effect of the use upon the potential market.

These XXX parodies (1) blatantly reappropriate the plot, character, and other aesthetic elements of (2) artistic, copyrighted movies, (3) use protected elements in new works of pornography that track the original works pretty closely, (4) for serious commercial value that could hypothetically snipe the income due to the creator if they had chosen to enter such markets in the future.  Put more simply, these XXX parodies aren’t likely to be seen as using the works to comment on the copyrighted work so much as to use the copyrighted work as a vehicle to make a better porno (and with such production values!).  The former would be protected, but the latter is an infringement.  Poetically, in Potter Stewart’s famous words, Copyright law empowers a judge to say, “I know it when I see it.”

But now, Google has begun to take the reins in the legal battle for free speech and Copyright reform; after all, they make all their money by cataloging, organizing and otherwise using other people’s speech.  And Google’s products and services, in the aggregate, may still serve as an important consumer technology that allow average, non-Copyright-savvy people to understand the need for fair use.  Most people can understand that Google’s search and archiving functions are simply necessary, and the technology that underlies those functions, regardless of whether it breaks the letter of Copyright law, should not be impeded by any workable regime.  After all, the whole functionality of something like YouTube lives and dies on whether or not users have basic freedom to use the product without prior restraints.  And regardless of how much today’s authors and rights-holders moan about the massive unlicensed infringement that Google undertook by scanning and indexing all of the world’s knowledge to make it searchable, the generations of tomorrow will probably look at Google Books the way we view porn today: simply necessary in a truly free society.

For now, Google’s case is still pretty esoteric and requires mental abstraction that its case is not as readily and simply understood by people who conceive of the Internet as a series of tubes.  I’m happy that a monolithic entity like Google relies on the freedom of speech from a political-lobbying perspective, but Google’s infringement isn’t easily packaged up in a meme for easy consumption by most Americans.  But even a Cro-Magnon man (i.e., 15-25% of voters) damn sure understands “Porn Good.”  Maybe more videos like this will help rile them up to defend Copyright reform:

After all, the Internet is for Porn!

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