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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