Copyright protection may provide a possible tool in the fight against revenge porn.
The recent release of hacked, intimate photos of Jennifer Lawrence, Kate Upton, and a slew of other A-list celebrities has heightened public attention to individual privacy in a digital age. Unfortunately, the unauthorized release of revealing photos intended to be private is a phenomenon affecting more than just Hollywood celebrities. Sometimes called “revenge pornography,” the non-consensual sharing of privately-captured, revealing photos more frequently arises when individuals share nude photos of their former partners or lovers following the break-up of a relationship. Recent figures in the U.K. reveal that children as young as 11 years old have become victims of revenge porn and that fewer than 5% of such cases are prosecuted.
Although not a perfect solution, copyright law may provide a remedy for revenge porn victims, according to a recent paper by Amanda Levendowski, now a member of the Trademark, Copyright & Advertising group at Cooley LLP. Levendowski argues that “[w]orking backward from the remedy victims most want—takedown procedures—copyright law stands out as the most efficient and predictable way to achieve those goals.”
According to Levendowski, “disinterested law enforcement” hinders using criminal law to combat revenge porn, and tort lawsuits are unlikely to bring meaningful remedy. Anti-harassment laws may seem like a possibility, but they usually require direct communication between the aggressor and victim. In a typical revenge porn case, such lines of communication may not exist. Similarly, invasion of privacy laws usually require that victims show a reasonable expectation of privacy. Some courts have ruled that reasonable people do not expect that pictures posted to the Internet will remain private, even if the sites hosting the images are generally unavailable to the public.
Even if individuals successfully bring tort actions, they are still unlikely to prevent websites and other Internet users from downloading, storing, and sharing the images.
Section 230 of the Communications Decency Act limits liability for internet service providers (ISPs), including web-hosting providers, stating that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Since many revenge porn websites do not create content but rather share user-uploaded images, or images provided by information content providers, Section 230 can provide ISPs with immunity from tort lawsuits. This means that while the original uploader may have to remove a photo, re-posted photos need not necessarily be removed.
However, Levendowski argues that, in order to provide a remedy for revenge porn victims, the key is understanding what Section 230 will not protect—namely, child pornography, obscenity, and copyright infringement.
Around 80% of revenge porn images are “selfies.” Levendowski explains that copyright law “protects any original work of authorship fixed in a tangible medium of expression, including photographs.” Thus, “authors” of selfies are likely afforded the same copyright protections as writers and filmmakers. Despite limited distribution, these authors retain exclusive rights over their work, according to Levendowski. The Supreme Court’s decision in Harper & Roe v. Nation Enterprise supports this claim, stating that owners retain rights over their work despite the public’s interest in access. Thus, Levendowski argues, the reproduction of such images constitutes copyright infringement.
To clarify and limit copyright liability for ISPs that depend on user-generated content, Congress passed the Online Copyright Infringement Liability Limitation Act, a subsection of the Digital Millennium Copyright Act (DMCA). The law provides that ISPs that comply with “notice and takedown” procedures—that is, removing information when they are made aware of a copyright infringement—will not be subject to copyright infringement liability. Notice and takedown is one of the reasons why, for example, some YouTube videos may be devoid of sound if the original video had a copyrighted song playing in the background.
Explaining the procedure, Levendowski states that individuals need not formally copyright their work or hire an attorney to file a takedown. Instead, they need only to find and submit to the ISP the URLs of their re-posted images, along with their name, contact information, and a written statement that the use is unauthorized. Many of the celebrity selfies were removed under DMCA claims.
Levendowski acknowledges a flaw in her suggested notice-and-takedown solution: filing a takedown notice may draw more attention to the images. Still, she argues, websites that fail to comply with the notice risk substantial legal liability under DMCA.
A number of states have passed laws against revenge porn. Arizona’s law, HB2512, currently faces a challenge by the American Civil Liberties Union (ACLU). The ACLU claims that the law is overly broad because it may inadvertently criminalize the “display, publication, and sale” of images that the ACLU argues are fully protected by the First Amendment. Under HB2512, anyone who distributes any image or video of another person nude without his or her consent could face more than three years in prison. The ACLU argues that this language could prohibit “showing a printed image to [a] friend, publishing a newsworthy picture in a textbook, and including a nude photograph in an art exhibition” without explicit, individualized consent. The ACLU states that revenge porn victims need remedies, but says that such relief should not come at the expense of over-regulating potentially valuable or otherwise legal speech.
Levendowski agrees with the ACLU that laws like Arizona’s are not the solution. Although she argues that other remedies and penalties need to be legislated, she warns that “targeted revenge porn legislation occupies a tricky space: imprecisely drafted revenge porn legislation protects many victims[,] but risks criminalizing protected expression.”
Copyright laws and regulations, she explains, might not be the perfect solution; however, such laws do not “threaten to erode the protections of free speech” in the same way as overbroad criminal legislation.
