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from www.techdirt.com – The awkward question of whether porn can be covered by copyright has been debated a time or two on this side of the world. In 2011, some discussion revolved around the protection of “obscene materials,” namely the protection extended to porn by the Fifth Circuit Court in a 1979 case involving a porn producer and a chain of adult theaters. This decision was cited in a lengthy footnote appended to a lawsuit filed by Liberty Media against 18 John Does.

In 2012, the argument was made that pornography doesn’t “promote progress,” therefore it should not be entitled to copyright protection. This particular argument is a rather dangerous one (and composed almost entirely of slope grease) as it puts the extension copyright protection in the hands of the court and allows it to determine whether a piece of erotica is art or “just porn.” (The case was closed before this conversation could really get started.)

On the other side of the world, Japanese porn producers are finding themselves battling this very argument.

For years producers of porn movies in Japan have bemoaned the lack of protection their content has received in Taiwan.

In 2010 things came to a head. The leading producers of the 20,000+ adult movies released in Japan each year warned Taiwan that if it didn’t get tough on pirates selling their content on websites and even airing it on TV, legal action would follow.

These producers took their complaints to Taiwan’s legal system and received this response.

Taiwan’s prosecutors said Wednesday that Taiwanese firms that use Japanese-made pornographic films to make profits online have not violated Japanese producers’ copyrights.

The Taipei District Court’s Prosecutors Office therefore announced it will not press charges against Elta Technologies Co. Ltd, and 10 other Taiwanese firms that the Japanese studios accused of violating their copyrights.

Despite the producers’ arguments that each film was unique and expressed singular artistic vision, prosecutors refused to budge, stating that Taiwan’s Supreme Court affords copyright protection only to “works of literature, science and arts.” According to the court, porn is not included, therefore it has no “copyright” to be infringed.

This disappointing decision prompting the Japanese porn producers to take another approach, and start calling the kettle black… for litigious reasons.

In a sign of how desperate they had become, the Japanese companies added that if they had no remedy under copyright law, they would sue the pirates for spreading obscene material and damaging the health of Taiwan’s children.

As crazy as it sounds this approach had the potential to work. While authorities have done nothing to protect copyrights of adult material, they do arrest people for distributing obscene material.

Ah, the “for the children” tactic. It’s been used here before as justification for SOPA and various computer-snooping plans. This is a bit different, however, as it flips the script on the pirates, turning them from enemies of porn producers to enemies of the state. It’s an approach that takes a very oblique angle, but when the usual stuff isn’t working, it’s time to bust out the “just-crazy-enough-to-work” options.

Unfortunately, it didn’t work. (Not crazy enough??)

[T]he adult producer’s claims that the pirates were spreading obscene material and damaging children didn’t gain any ground either. The prosecutors decided that since the pirate sites displayed warnings and blocked minors from accessing their websites then there was no case to answer there either.

At this point, it looks as if Japan’s porn producers are out of options, at least in terms of preventing piracy in Taiwan. The court tells them their work is too dirty to protect. They counter by saying their work is too dirty to distribute. The court says (paraphrasing) “It’s ok, these sites are using protection.” I doubt these producers really want to push the issue of having porn declared a protectable art form and leave the defining line between protectable art and unprotected obscenity in the hands (and minds) of government officials. Perhaps these producers should just concede the battle and focus on areas where they have the protection, or at least, paying customers.