Copyright, Sexting, and Revenge Porn: What Law Should Do

California has a new law criminalizing certain forms of revenge porn. I’ve been publicly skeptical about it. What do I propose instead?

As I suggested in an earlier post, I think copyright law offers a powerful mechanism to, simultaneously, foster the production of intimate media by consenting partners and to punish non-consensual distribution and display (such as revenge porn) by treating them as infringement. This post outlines the key elements of my proposal.

I propose an amendment to the Copyright Act that would confer a new right upon the subjects of intimate media. Intimate media are photographs or audiovisual works that meet four criteria:

  1. The media contain images of one or more living humans;
  2. The rightsholder – the future plaintiff – is one of those living humans captured in the media;
  3. The rightsholder can be reasonably identified from the media, or from the combination of the media and the information accompanying it; and
  4. The media contains intimate information, which is defined as sexually explicit conduct involving the plaintiff, or the plaintiff’s genitals, pubic area, or (if female) exposed nipple or areola.

A person identifiably captured in a work of intimate media would enjoy a new right: to prevent distribution and display of that work. This right would apply against both private and public distribution and display. It would be waivable in writing, but not alienable. The new right would have two key limits. First, it would not apply against someone who received the work from a person identifiably captured in it (so long as that person did not further distribute the work, or display it to someone else). And, it would apply only prospectively, to intimate media created after the implementation date of the amendment.

This new copyright entitlement would be infringed whenever someone distributed, or displayed, the work of intimate media in which the plaintiff was identifiably captured. Distribution would include making the image or video available to others, and would not require proof of actual distribution. The new right would apply to two classes of defendants: natural persons, and service providers. Natural persons would infringe via the standard modes of display and distribution. Service providers would infringe via activities such as hosting, linking, and caching.

A plaintiff who sued one of these defendants and won could obtain the usual monetary damages along with injunctive relief. The availability of statutory damages ($750 – 30,000 per work infringed) would enable plaintiffs to recover litigation costs, and would create some deterrence for potential infringers. My proposal would modify the Copyright Act’s registration requirement for statutory damages. At present, the Act requires registering a work within three months of publication to obtain these damages. I would alter it to permit registration of works of intimate media at any time before suit for this purpose.

The proposal includes a safe harbor and two affirmative defenses. The safe harbor would apply to service providers, who would be immune from damages until they received a notice of claimed infringement of the new right from a plaintiff. If the ISP disabled access to or removed the accused infringing work of intimate media within 5 days, they would retain immunity from damages. A notice of claimed infringement would include an allegation of infringement of the plaintiff’s right in a work of intimate media, URLs under the ISP’s control where the work could be located, and contact information for the plaintiff. (I would permit plaintiffs to proceed pseudonymously, coordinated by a federal district court.)

Finally, the new copyright entitlement would provide two defenses to infringement. First, a defendant who obtained written consent from the plaintiff to the distribution or display of the work of intimate media would defeat liability. Second, there would be no liability where the distribution or display was newsworthy. (Fair use would not be a defense to infringement of the new right.)

To summarize: the proposed reform would create a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media.

Let me close with a word about my normative commitments in this project. I intend this proposal seriously, and I believe in its merits. It’s also an exploration of some troublesome zones in copyright. Are the First Amendment’s requirements really met simply by the idea-expression dichotomy and fair use? How closely would a reviewing court scrutinize substitutes for those restraints? Does the constitutional and statutory requirement of authorship have any heft, either conceptually or doctrinally? What quantum of proof must Congress adduce about the effects of a change to the Copyright Act to satisfy the goal of “promot[ing] the progress of science… by securing for limited times to authors… the exclusive right to their respective writings”? I think my proposal passes all of copyright’s tests – constitutionally, conceptually, and practically. I suspect copyright scholars will find that conclusion unappealing. I’m looking forward to hearing why they think I’m wrong.

For more details, see the full draft of the paper, Exposed (98 Minn. L. Rev., forthcoming 2014).

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