Tag Archives: constitutionality

Affirmative defense asserting that Copyright Act is unconstituational survives motion to strike

Plaintiff sued defendant search engine for copyright infringement alleging that defendant wrongfully reposted a picture plaintiff had taken. Defendant’s answer included a number of affirmative defenses. Plaintiff moved to strike the affirmative defenses. The court struck some of them but allowed at least a couple of them to survive.

Unclean hands – Defendant apparently perceived some trollish behavior on the part of the plaintiff. Defendant alleged that, in light of plaintiff’s practice of taking photographs of no actual value, for which there is no market, and seeding them on the internet for the purpose of attempting to extort revenue through litigation, that the claims for equitable relief should be barred by unclean hands. Plaintiff objected, claiming that it was scandalous to characterize plaintiff’s enforcement efforts this way. The court found, though, that the defense was adequately pled and not scandalous. “While the … defense is unfavorable to Plaintiff, it does not ‘cast a cruelly derogatory light on’ Plaintiff as necessary for the Court to conclude that the defense is scandalous.”

Unconstitutionality of portions of Copyright Act – Defendant also asserted that 17 U.S.C. §§ 102 and 410, statues dealing with copyright protections, are unconstitutional as applied to pictures based on technological advancements in photography. Plaintiff responded by pointing out that the Supreme Court since 1884 has found copyright protection for photographs to be constitutional, and argued that defendant presented no cognizable legal argument to suggest that Congress exceeded its constitutional powers by enacting the Copyright Act. Perhaps surprisingly, the court rejected plaintiff’s argument. It noted that the defense was not insufficient, redundant, immaterial, impertinent, or scandalous, but that defendant was arguing that the law, or at least the application of the law, should be changed, and defendant presented grounds for its argument.

Miller v. 4Internet, LLC, 2019 WL 1937567 (D.Nev. April 30, 2019)

Court rejects constitutional challenges to obscenity statutes in prosecution of adult website owner

U.S. v. Little, No. 07-170, 2008 WL 151875 (M.D. Fla. January 16, 2008)

The operator of the Max Hardcore website was indicted under 18 U.S.C. §§1462 and 1465 for distributing allegedly obscene video files which agents downloaded in Tampa, Florida. Max Hardcore moved to dismiss the indictment, raising a number of constitutional challenges to the prosecution. The court rejected each of the defendant’s arguments and denied the motion.

Statutes not facially unconstitutional

The court declined to accept the defendant’s argument that because of the evolving nature of substantive due process law, prior Supreme Court decisions upholding the federal obscenity statutes were no longer valid. It also refused the defendant’s argument that the constitutional right to privately posses obscene materials should translate into a corresponding right to distribute such material.

Statutes not unconstitutional as applied

The defendant also launched a couple of challenges to the application of the Miller test, set forth in the Supreme Court’s decision of Miller v. California, 413 U.S. 15, 93 S.Ct. 2607 (1973). Under the Miller test, the finder of fact determines whether material is obscene by applying the following test: (a) Whether “the average person, applying contemporary community standards’” would find that the work taken as a whole, appeals to prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

Max Hardcore’s challenge to the Miller test dealt with the requirement that the works at issue be “taken as a whole.” The defendants argued that because of the interconnected nature of the Web, it would be impossible to know what the term “taken as a whole” means, and it would similarly be impossible to determine the community standards against which the works should be evaluated. At the very least, the defendant argued, the entire Max Hardcore site should be considered the work “taken as a whole,” and not just the individual video files.

With little analysis, the court sided with the government, holding that the individual files – and not the whole website – should be the works “taken as a whole.” And the court concluded that the absence of a universal community standard was okay. Citing to U.S. v. Bagnell, 679 F.2d 826 (11th Cir. 1982), it held that “[i]t is constitutionally permissible to subject defendants in obscenity prosecutions to varying community standards of the various judicial districts into which they transmit obscene material.”