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Daily Journal Article Highlights Copyright as Tool in Fight Against Revenge Porn

OWE’s Emily Poole authored an article that was published by the Daily Journal on March 18, 2015, “Copyright: another tool in fight against revenge porn”.  Emily’s article, which is set out in full below, concludes that “People are beginning to realize nonconsensual pornography is a growing problem that needs a strong response . . . This is slowly happening as legislatures draft and fine-tune laws.  But while the law is in flux, many victims and their attorneys can rely on the established procedures of copyright law to have unwanted sexually explicit images removed from the Internet.”

Copyright: Another Tool in the Fight Against Revenge Porn

Hunter Moore, aka the “king of revenge porn,” is currently awaiting sentencing after pleading guilty to felony charges for computer fraud and abuse and aggravated identity theft. Moore operated the now defunct IsAnyoneUp.com — the website that put “revenge porn” in the dictionary. States are still scrambling to update their penal codes to address the revenge porn phenomenon, but in the meantime, victims might consider looking to another are of law for a remedy: copyright.

Revenge porn, better characterized as nonconsensual pornography, is the distribution of sexually explicit photos or videos without the subject’s consent, typically intending to embarrass or shame the subject. Distributors may have obtained the images with the subject’s initial consent, captured them without the subject’s knowledge, or as in Moore’s case, unlawfully hacked them from the subject’s computer.

IsAnyoneUp.com encouraged users to submit nonconsensual sexually explicit images and post the subjects’ personal details alongside their submissions. The implied purpose was to urge users to contact and harass the subjects. At its peak, IsAnyoneUp.com reportedly received around 30 million page views per month, generating upwards of $10,000 in revenue each month. Moore now faces a $500,000 fine and up to seven years in prison.

Moore’s plea comes on the heels of the conviction of a fellow website operator. In February, a San Diego jury found Kevin Bolleart guilty of extortion and identify theft. Bolleart operated YouGotPosted.com, a twin to IsAnyoneUp.com. Bolleart took the harassment a step further by creating a second website, ChangeMyReputation.com, which he used to contact the individuals posted on his site with an offer to remove their images for a $300 to $350 fee. Bolleart now faces up to 20 years in prison for his scheme.

While prosecutors are going after the big guys — the website operators — many nonconsensual pornography distributors seem fearless of legal repercussion. This is for two reasons. First, few states have laws making nonconsensual pornography illegal. Second, many victims do not have the resources to pursue civil claims against distributors.

In 2013, California became the first state to enact a law expressly criminalizing nonconsensual pornography. Violations are misdemeanors, punishable by a fine of no more than $1,000 and up to one year in prison. The law as passed in 2013 suffered from a serious limitation: It only covered images taken by someone else — i.e., it did not cover “selfies.” Estimates suggest that over 80 percent nonconsensual pornography images are self-shots the victim sent to the distributor, making the law largely inapplicable. In fact, only one individual has been successfully prosecuted under the statute. A Los Angeles man was sentenced to a year in jail for posting topless photos of his former girlfriend on her employer’s Facebook page.

In 2014, however, the California Legislature passed a bill to broaden the statute. Senate Bill 1255, which takes effect July 1, will criminalize the nonconsensual distribution of sexually explicit images intended to remain private, regardless of who captured the image — that is, it will cover selfies. Another California law that takes effect the same day, Assembly Bill 2643, will provide victims a private right of action for damages.

In the meantime, selfie victims in California and across the U.S. have a relatively simple and low-cost legal remedy for getting their images taken down in copyright law. Copyright protects any original work of authorship fixed in a tangible medium of expression. In other words, the person who takes a photo or captures an image is the copyright owner of that image and has the right to control or prohibit its distribution.

Since so much nonconsensual pornography involves selfies, copyright law is an option for many victims. The Digital Millennium Copyright Act requires website operators that receive proper notice their website is hosting infringing material to remove the material or face liability as a secondary infringer. A victim discovering her selfies online can use the act to have the images removed. Unfortunately, copyright law does not protect the subject who posed for the distributor or had photos taken without her notice.

Copyright does have its limitations. There is no guarantee that images will not reappear the next day on a different website or from a different distributor. Further, the subject would not be entitled to statutory damages for the unauthorized distribution of her photo unless she had registered it with the Copyright Office. Relief would be limited to the removal of her photos and actual damages, which would likely be negligible.

Although direct monetary damages may be minimal, nonconsensual pornography causes great harm to its victims. Economically, some victims claim to have lost their jobs after their pictures surfaced online. Emotionally, victims report feelings of shame and embarrassment so strong they have difficulty functioning in society. Victims may receive anonymous threats of rape. They may avoid leaving their homes for fear of physical assault, or avoid using the Internet due to the persistent harassment. Some victims have even committed suicide.

People are beginning to realize nonconsensual pornography is a growing problem that needs a strong response. Some websites, like Reddit and Twitter, have voluntarily instituted policies banning nonconsensual pornography. Still, a legal response is needed. This is slowly happening as legislatures draft and fine-tune laws. But while the law is in flux, many victims and their attorneys can rely on the established procedures of copyright law to have unwanted sexually explicit images removed from the Internet

 

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