Info/Law

The lawsuit against scumbag Web site Texxxan.com has generated attention to the problem of revenge porn, and to the paucity of legal remedies available to victims of it. Danielle Citron has two excellent posts over at Concurring Opinions analyzing the relevant statutory block, 47 U.S.C. 230, and the few cases that cut through its immunity. (I disagree with Danielle on the statutory interpretation point in the first post – in my view, the courts are right to interpret the language of 230 and not its purpose. I’m not a strict textualist, but judges have to be limited by something, and the language of the statute seems like the right boundary.)

I have a draft article that proposes a solution to sexting, revenge porn, and the like. I’ll put up an excerpt after submission season ends and I can give the piece the attention it deserves. But, for the moment, here’s a different proposal: why don’t all revenge porn victims submit takedown notifications under Title II of the DMCA (17 U.S.C. 512(c)(3))? Doing so puts the site on the horns of a dilemma: remove the content, or face liability under the Copyright Act. (I suspect a jury would be all too ready to find infringement, and since damages are up to the jury, the award could be sizeable. Even defending such a suit would be costly for the site’s proprietors.)

There are two objections to my plan, both potentially significant. First: the victim is not the copyright owner. Second: 512(c)(3)(A)(vi) requires certification under penalty of perjury that the complaining party is authorized to act on behalf of the copyright owner / owner of an exclusive right, and no one wants to be prosecuted for perjury. (Not even Roger Clemens.) But: I have responses to both.

Photography is a challenging area for copyright law. Some photographs will not even be eligible for copyright: those that lack the requisite originality. Some photos will merely capture the natural world with no input from the photographer – think of an accidental iPhone snap, or just pointing your high-speed camera at a parade and holding down the shutter button. And in some cases, the person pressing the camera button will not be the photographer. All the creative work has been done by someone else – someone who created or set up the tableau which the photograph records. (See, for example, Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1991).) That means that it is the person who created the scene who could obtain copyright. The photographer is a mere amanuensis (probably a terrific Scrabble word). (Cf. Thomson v. Larson, 147 F.3d 195 (2d Cir. 1998).) So, a crude approximation of the rule for authorship in photos would be this: the source of the original, creative elements of the photo is an author.

For revenge porn, I think there is a defensible position that the subject – the victim – of the image or video is at least a joint author. Why do people look at these images? (A good question there, full stop.) Because of the subject – not because of the lighting, the use of unusual color or angle, the excellent development of the print, or any other contribution by the photographer. Put it this way: imagine that the victim is replaced by a dummy, or Felix the Cat. No one is even going to glance at the photo: there’s nothing expressive or original about it.

I think that means that a victim, and her attorney, can often take a legally defensible position that she is an author of the photo. That means she can, under 512(c)(3), send a take-down notification to the site. This raises the second objection: you have to certify, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right. I think that the victim is such an owner – indeed, an author. One would also hope that, in close cases, a prosecutor might decline to pursue perjury charges against the victim / her attorney. I don’t think it would be easy to prove perjury beyond a reasonable doubt. Heck, they couldn’t get Clemens! Or Barry Bonds! (True, they had expensive lawyers.) I suspect a jury would be sympathetic to the dilemma the victim faces. And I would hope that a prosecutor would either see a better use of her limited resources, or would feel constrained by the likely public reaction to an attempt to prosecute someone who already had been harmed so greatly.

Theoretically, a site owner could mount a counter-suit against the victim under 512(g). But: they’re not going to get much money out of it. (See Lenz v. Universal.) And I can only think of two successful 512(g) cases, both with egregious sets of facts – Lenz, and Online Policy Group v. Diebold. As I tell my students, 512(g) is a bit like the reverse doctrine of equivalents in patent law: it exists in theory, but not in practice.

This tactic pushes the edge. But there aren’t many options for victims of revenge porn, and this may be a gambit worth trying.

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Filed under: Anonymity, Blogging, Copyright, Court Decisions, Digital Media, Intermediaries, Internet & Society, Law School, Media, Peer Production, Privacy, Scholarship, Social Networking

The Center for Individual Freedom has just published a paper by three RIAA lawyers that purports to develop a natural rights theory and history of copyright. The paper is short (6 pages long), which appears to be its only valuable quality. I’ll set out a brief critique below, but first I want to note that the paper’s mere appearance / existence is a fascinating signal. It’s an instantiation of copyright greenwashing: the content industry is trying to seed the academic and policy literature with pro-copyright arguments and justifications. (One would have thought they could afford more than 6 pages? But, with three law firm partners charging by the word, perhaps even the RIAA does not have bottomless pockets.) The reason this is interesting is that it suggests that the strong trend in copyright scholarship towards skepticism – towards the view that copyright law has become badly skewed towards overprotecting works, in a fashion that has adverse societal consequences – has become a concern for Hollywood. Otherwise, why bother with an academic paper?

I think there are two reasons for the shift. First, Mickey Mouse is due to fall out of copyright in 2018, and so the industry wants to get a head start on the debates over the next Copyright Term Extension Act. Second, and perhaps more importantly, the contretemps over SOPA and PROTECT IP was the first real instance of Hollywood not getting its way legislatively. There is a generation of digital natives who have been raised on suspicion of Big Content, and they are starting to attain political influence. So, one response to the fight over whether we’ve tuned copyright correctly (to get more movies, books, etc.) is to shift the battleground: treat copyright as an inherent right rather than an instrumental one. I think, then, that the appearance of this paper is a sign that Hollywood is not only nervous about its political strength, but that it realizes that legal scholarship makes some difference. (Law review editors: rejoice!) It matters not only because it frames debates effectively, but because a whole generation of students has been consuming copyright skepticism, and it’s having an effect.

Why greenwashing? Because this is a turgid advocacy piece masquerading as academic writing. It hasn’t been published by a reputable journal, nor reviewed by anyone other than the authors and their sockpuppet CIF. (Student-run journals are hardly a model of academic review, but they’re far superior to nothing.) It treats cursorily an extraordinarily rich and complex topic in intellectual property. It is intellectually lazy – the piece cites an article by Fred Yen, two by Justin Hughes, one by Frank Easterbrook, and one by Jane Ginsburg (along with a student note, and three books). Thus, it fails utterly to engage the thoughtful scholarship that takes up the natural rights argument, including by Adam Mossoff and Mark Schultz among others. (The paper is too slipshod even to cite its intellectual allies. Nice.) And, ironically, it is utilitarian in purpose – the paper’s existence is driven not by academic curiosity, but by the policy needs of its paymasters.

Lastly, while the paper purports only to be a descriptive, historical analysis, it fails to consider counterarguments. (Indeed, it doesn’t even bother to cite the best historical account of the drafting of the IP Clause, by Dotan Oliar.) Take for example the claim that intellectual property deserves greater protection under a Lockean analysis than physical property. That claim fails to consider the difficult demarcation problem inherent in intellectual property: when an author has drawn upon the intellectual commons to create a new work (say, West Side Story), how should rights be allocated? After all, part of the musical’s appeal is the creative output of Sondheim and Robbins, and part is from the classic narrative provided by Shakespeare (who himself drew upon earlier sources). This line-drawing problem is much harder – in determining the scope of the right to exclude – than it is for physical objects, which at least have thingness (you can put an apple in your pocket) to help us set boundaries. This suggests that IP should receive less protection than physical property, not more. It is quite difficult to determine the relative contributions of the commons and the creator.

Second, if copyright is based upon labor desert, and therefore is treated like property, why on earth does the Constitution provide that the right to exclude terminates? Title to physical property lasts forever. Copyright seems like it does, but the Constitution sets an outer bound: it can endure only for “limited Times.” That limitation in itself suggests, at least, a significant admixture of utilitarian thinking in the IP clause.

But I’m spending more time on this article than it deserves. It will happily land on the dustbin of history. And, ironically, it should lend some comfort to utilitarian critics of copyright: the shift in tone, and tactics, suggests they are starting to gain traction.

Update: I meant to include in the original post that this paper is really just another sales tactic in the political economy of intellectual property. For a thoughtful discussion of that topic, I recommend Dan Hunter’s book on IP.

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Filed under: Copyright, Court Decisions, Digital Media, Education & Copyright, Internet & Society, Law School, Music, Politics, RIAA, Scholarship

The Supreme Court has granted cert in Association of Molecular Pathology v. Myriad Genetics, a decision that seemed inevitable from the moment the Federal Circuit issued its fractured, confused set of opinions upholding the breast cancer gene patents. The case represents another foray by the Supreme Court into patentable subject matter, on the heels of Bilski (abstract ideas) and Mayo (laws of nature). This is, of course, a problem of the Court’s own making: its decisions setting out common law exceptions to patentable subject matter have vexed lower courts and scholars alike, and the Court keeps attempting to clarify its doctrine.

Myriad, and the line of cases behind gene patents, rely critically on Parke-Davis v. H.K. Mulford Co., a decision by Judge Learned Hand upholding a patent on purified adrenalin. My friend and former BLS colleague Chris Beauchamp has a terrific article coming out in the Stanford Technology Law Review that is simultaneously a deft exploration of this area of patent law, a brilliant history of the case, and a fascinating case study of the culture of patenting in an industry (and how it can break down). It is almost unbelievably prescient in its timing and analysis, and I highly recommend it. If anyone knows of a way to get it in front of the justices – or, at least, their clerks – please let me know.

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Filed under: Court Decisions, Law School, Patents, Scholarship

The final version of Orwell’s Armchair, 79 University of Chicago Law Review 863 (2012) , is available on-line (and in print, for those of you who roll old-school). Here’s the abstract:

America has begun to censor the Internet. Defying conventional scholarly wisdom that Supreme Court precedent bars Internet censorship, federal and state governments are increasingly using indirect methods to engage in “soft” blocking of online material. This Article assesses these methods and makes a controversial claim: hard censorship, such as the PROTECT IP and Stop Online Piracy Acts, are normatively preferable to indirect restrictions. It introduces a taxonomy of five censorship strategies: direct control, deputizing intermediaries, payment, pretext, and persuasion. It next makes three core claims.  First, only one strategy—deputizing intermediaries—is limited significantly by current law. Government retains considerable freedom of action to employ the other methods and has begun to do so. Second, the Article employs a process-based methodology to argue that indirect censorship strategies are less legitimate than direct regulation. Lastly, it proposes using specialized legislation if the United States decides to conduct Internet censorship and sets out key components that a statute must include to be legitimate, with the goal of aligning censorship with prior restraint doctrine. It concludes by assessing how soft Internet censorship affects current scholarly debates over the state’s role in shaping information online, sounding a skeptical note about government’s potential to balance communication.

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Filed under: Copyright, Digital Media, Filtering, First Amendment, Intermediaries, Internet & Society, Network Neutrality, Politics, RIAA, Scholarship, Search Engines

My friend and Ohio State law prof Steve Davidoff has a great post on the economics of law school at the New York Times’ Dealbook. One of the most important points he makes is that some proposals to improve law school – such as increasing experiential learning, like clinics – would make it significantly more expensive. A key read.

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Filed under: Blogging, Corporate Law, Law School, Media, Scholarship