Copyright, Obscenity, and Unclean Hands

69 Pages Posted: 22 Sep 2021

See all articles by Ned Snow

Ned Snow

University of South Carolina

Date Written: August 21, 2021

Abstract

A mouse click away, virtual pornography promises immediate satisfaction of the prurient interest. Yet the allurement of ephemeral pleasure often presents a trap for the unwary. Some copyright owners use their pornographic works solely to extract tidy sums from the ignorant and base of society. Known as “copyright trolls,” these copyright owners have made a business out of litigating infringement claims, and virtual pornography yields fertile ground for their money-making scheme. It starts with sex on the screen, is followed by a lawyer’s letter, and ends with money paid. Tempting, efficient, and lucrative, copyright trolling has become a booming business.

Judges detest this practice. They are offended that the judicial system is being used as a cog in the troll’s machine of litigation. What can be done? The answer lies in the equitable doctrine of unclean hands. Centuries old, the doctrine of unclean hands allows courts to bar claimants from enforcing their rights if the claimants have engaged in wrongful conduct that is relevant to the subject matter of a lawsuit. This scenario frequently arises when copyright trolls pursue infringement claims for unauthorized downloading of their pornographic works: the trolls have often employed those works to violate state and federal obscenity laws. The works over which they seek copyright protection are the instrumentalities for their unlawful conduct, so unclean hands would seem to apply. Courts should not enforce their copyrights.

This simple solution to the problem of copyright trolls turns out not to be so simple. In Mitchell Bros. Film Group v. Cinema Adult Theater, the Court of Appeals for the Fifth Circuit held that unclean hands does not apply where a litigant is seeking to enforce a copyright to an obscene work. Although the case is more than four decades old, it has proven highly influential among jurists. The Ninth and Seventh Circuits have followed Mitchell, along with several district courts. Other courts, however, have questioned its holding, suggesting that the law on this issue is unsettled. Surprisingly, though, no one has critically analyzed the Mitchell decision; courts and commentators have only noted its holding or cursorily described its reasoning. Mitchell is overdue for an examination.

This Article is the first critical analysis of Mitchell. The Article concludes that Mitchell was wrongly decided because of serious flaws in the court’s reasoning. The Article then argues that, pursuant to the unclean hands doctrine, the public interest warrants against enforcing a copyright when a copyright owner has committed an unlawful act either in the process of creating her work or in the process of exercising her rights. As a practical matter, this would mean that copyright would be unenforceable for much of pornography. Copyright trolling would cease.

Keywords: copyright, obscenity, Mitchell Bros., unclean hands, equity

Suggested Citation

Snow, Ned, Copyright, Obscenity, and Unclean Hands (August 21, 2021). Baylor Law Review, Vol. 73, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3908814

Ned Snow (Contact Author)

University of South Carolina ( email )

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Columbia, SC 29208
United States
(803) 777-8064 (Phone)

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