Copyright is meant to protect intellectual property, but the very nature of what can be copyrighted is being called into question. Is porn actually copyrightable or are the smut barons who are going after file sharers barking up the wrong tree?

An American woman is being sued for torrenting a porn flick from blue movie producers Hard Drive. Sadly that’s nothing unusual these days, but what’s interesting is that part of Liuxia Wong’s defence is that porn isn’t copyrightable because it’s an “obscene” work. Wong’s countersuit details:

“Article 1, Section 8, Clause 8 of the United States Constitution, known as the Copyright Clause, empowers the United States Congress: ‘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.”

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

If a judge decides that porn isn’t copyrightable under current US law it’ll have massive knock-on affects on the industry – a free for all on all US copyrighted porn movies, not to mention retaliation suits for anyone who’s been sued in the past on the grounds of copyright.

Whether it’ll have a knock-on affect on the UK’s copyright laws of said sordid works, I don’t know (I’m not a lawyer). But porn’s been the forerunner for lots of things in the past. Whatever happens, it’ll certainly be an interesting one to keep an eye on. Creative Commons porn anyone? [TorrentFreak]