[Kopimism] Fwd: [CyberProf] "...revenge porn is under siege."

Fri Apr 12 15:43:28 PDT 2013

perhaps it is best simply not to film oneself having sex.

On Tue, Apr 9, 2013 at 5:16 PM, Eddan Katz <eddan at clear.net> wrote:

> thought this selection from a thread on Cyber-Profs might be of curious
> interest to kopimists. I'm with my friend Laura just below that this
> totally misses the point of the problem. From a Kopimist perspective, this
> further demonstrates the gross misapplication of strong regulatory rules on
> copying as a means of solving all social problems through technical proxy
> rather than dealing with what's so messed up about it - like intrusion of
> privacy and obscene defamation.
>
> *From: *Laura Quilter <lquilter at lquilter.net>
> *Subject: **Re: [CyberProf] "...revenge porn is under siege."*
> *Date: *April 9, 2013 8:01:06 AM PDT
> *To: *"cyberprof at lists.stanford.edu" <cyberprof at lists.stanford.edu>
>
> The problem with using copyright on these issues is not that sometimes
> some victim will get redress.  It is that copyright is not a good fit for
> the problem.  It is overbroad, so it will allow takedowns of all kinds of
> materials that are not the ones that are obviously injurious; it doesn't
> have the right kinds of corrective actions, to cover the times when the
> action isn't the obvious bad action; and it is too narrow to cover a lot of
> the folks who need redress cannot get it (those who are nonconsensually
> photographed or those who consented to the photography but not the
> distribution, and joint authors who want to stop the distribution rather
> than seek accounting for any profits).
>
> As a matter of development of law, the ability of copyright to be so very
> broadly used hinders or at the least does not help us come to a solution
> that would actually fit the problem more closely.  The more folks use
> copyright to meet privacy (and other) needs, the more copyright's purposes
> & function are distorted.  But also, if we are meeting half the victim's
> needs with copyright, then half the need for privacy law is diminished.
> It's good for those individual claimants, to the extent that their actual
> needs are met by a klugey solution, but what about all the others who don't
> have recourse to copyright law?
>
> I really like the idea of a narrowly-tailored statute that gets at the
> harms, at least for the majority of states that have poorly-developed
> privacy or IIED torts.  I'm not worried about the First Amendment getting
> in the way of doing it.  There's nothing in the current law that would
> prevent the relatively minor extension of First Amendment exceptions for
> tort claims by private individuals beyond defamation/false light to
> IIED/public disclosure of private facts.  And I see no reason why a
> reasonably well-drafted and narrowly tailored statute wouldn't survive.  At
> least, I applaud the legislators for trying; if they get it wrong and we
> get a well-reasoned decision saying how & why it's wrong and overbroad,
> then we can try again.
>
> Trying to cram all the world's ills into copyright law -- although it
> almost works, since copyright is so broad! -- is not going to serve either
> the purposes of copyright law or the needs of individuals for privacy and
> autonomy and control over certain kinds of information about themselves.
>
> To be honest, this seems like the sort of thing that I would like someone
> to craft some model legislation on.  Why can't those of us concerned about
> intellectual freedom *and* privacy rights draft some model legislation?  It
> seems these days that any two-bit organization with an ideological bent can
> draft model legislation and get it successfully passed with the right
> backing.  Maybe some of our fine legal clinics and law professors could
> work on this.  I'd help.
>
> Laura
>
> ----------------------------------
> Laura Markstein Quilter / lquilter at lquilter.net
> Librarian, Geek, Attorney, Teacher
>
>
> Copyright and Information Policy Librarian
> University of Massachusetts, Amherst
> lquilter at library.umass.edu
>
> Lecturer, Simmons College, GSLIS
> laura.quilter at simmons.edu
>
>
>
>
> On Tue, Apr 9, 2013 at 9:50 AM, Bartow, Ann M. <abartow at law.pace.edu>wrote:
>
>> Joint authors cannot sue each other for copyright infringement, so if one
>> joint author is victimizing the other by distributing a work, copyright law
>> might not have anything to offer the victim. But at least in the Seventh
>> Circuit one joint author has standing to sue third parties for copyright
>> infringement, see
>> http://www.loeb.com/files/Publication/3c77768b-359e-4ec8-8082-69fb241e39f7/Presentation/PublicationAttachment/137b86ef-7a1a-44d3-92c5-6c6779186c33/Brownmark%20v.%20South%20Park.pdf
>> But see: http://caselaw.findlaw.com/us-9th-circuit/1393420.html
>>
>>
>> Ann Bartow
>> Professor of Law
>> Pace Law School
>> 78 North Broadway
>> White Plains, New York 10603
>> (914) 422-4097
>> *****************
>> Fulbright Scholar '11 - '12
>> Tongji University
>> Shanghai, People's Republic of China
>>
>>
>> -----Original Message-----
>> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
>> Sent: Tuesday, April 09, 2013 9:28 AM
>> To: Bartow, Ann M.; cyberprof at lists.stanford.edu
>> Subject: RE: [CyberProf] "...revenge porn is under siege."
>>
>>         I was just responding to the "Has anybody suggested otherwise,
>> Fred?" question.
>>
>>         Also, if the subjects of the revenge porn are joint authors (with
>> the photographers who then post the material), I would think that this
>> means the subjects may *not* use copyright law to block distribution of the
>> photographs:  As I understand it, each joint author is allowed to
>> distribute the work on his own say-so, without the coauthors' permission.
>>
>>         Eugene
>>
>> -----Original Message-----
>> From: cyberprof-bounces at lists.stanford.edu [mailto:
>> cyberprof-bounces at lists.stanford.edu] On Behalf Of Bartow, Ann M.
>> Sent: Tuesday, April 09, 2013 6:03 AM
>> To: cyberprof at lists.stanford.edu
>> Subject: Re: [CyberProf] "...revenge porn is under siege."
>>
>> Eugene, I am not sure if you are suggesting Rob is wrong about copyright
>> authorship/ownership, or that Fred thinks Rob is wrong about copyright
>> authorship/ownership. In any event, a sizeable portion of "revenge porn" is
>> comprised of videos and photographs taken by victims and shared with their
>> romantic partners. After the relationships end, the former partners
>> distribute works with the names and contact information of their copyright
>> holding exes, to humiliate and punish them.  I don't understand why using
>> the notice and take down provisions of the DMCA would be any less
>> legitimate for these copyright holders than it is for anybody else.
>>
>> There is also a possibility that subjects of revenge porn could in some
>> circumstances be considered joint authors, as Derek Bambauer explains here:
>> https://blogs.law.harvard.edu/infolaw/2013/01/25/beating-revenge-porn-with-copyright/
>>
>>
>> Ann Bartow
>> Professor of Law
>> Pace Law School
>> 78 North Broadway
>> White Plains, New York 10603
>> (914) 422-4097
>> *****************
>> Fulbright Scholar '11 - '12
>> Tongji University
>> Shanghai, People's Republic of China
>>
>>
>> -----Original Message-----
>> From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
>> Sent: Monday, April 08, 2013 10:33 PM
>> To: Bartow, Ann M.
>> Subject: RE: [CyberProf] "...revenge porn is under siege."
>>
>>         I take it that Fred's copyright point was in response to Rob
>> Heverly's suggestion that, "A useful strategy might be to pursue suits
>> against these sites under  copyright law (where the victim made the
>> photograph/video)and bring suit for infringement."
>>
>>         Eugene
>>
>> -----Original Message-----
>> From: cyberprof-bounces at lists.stanford.edu [mailto:
>> cyberprof-bounces at lists.stanford.edu] On Behalf Of Bartow, Ann M.
>> Sent: Monday, April 08, 2013 5:22 PM
>> To: Fred von Lohmann
>> Cc: cyberprof at lists.stanford.edu
>> Subject: Re: [CyberProf] "...revenge porn is under siege."
>>
>> Has anybody suggested otherwise, Fred?
>>
>> This case highlights the potential impact of copyright law pretty
>> effectively:
>> http://law.justia.com/cases/federal/appellate-courts/ca6/11-3445/11-3445-2012-08-16.html
>> The photos are not "dumped lover" revenge porn but they are "put an
>> uppity woman in her place" porn, which perhaps fits within a broad
>> definition of revenge porn.
>>
>> And fwiw here is a short article that discusses gaps in the law in the
>> general legal neighborhood of revenge porn:
>> http://www.dailymail.co.uk/news/article-2223226/Lindsey-Boyd-sues-Girls-Gone-Wild-filming-topless-just-14.html
>>
>>
>>
>>
>> Ann Bartow
>> Professor of Law
>> Pace Law School
>> 78 North Broadway
>> White Plains, New York 10603
>> (914) 422-4097
>> *****************
>> Fulbright Scholar '11 - '12
>> Tongji University
>> Shanghai, People's Republic of China
>>
>>
>> ________________________________________
>> From: Fred von Lohmann [fred at vonlohmann.com]
>> Sent: Monday, April 8, 2013 7:57 PM
>> To: Bartow, Ann M.
>> Cc: cyberprof at lists.stanford.edu
>> Subject: Re: [CyberProf] "...revenge porn is under siege."
>>
>> While I have strong feelings about the First Amendment issues here, I
>> will leave that commentary to those who are much more expert than I am.
>> Just a quick reminder, however, on the copyright front, that many "revenge
>> porn" situations will be complicated by questions of authorship. Generally
>> speaking, it is the person taking the photo who holds the copyright, not
>> the subject of the photo. In those cases, using copyright tools may be
>> inappropriate (and in some cases under 17 USC 512f, actually actionable).
>>
>> Fred
>>
>> On Apr 8, 2013, at 1:46 PM, "Bartow, Ann M." <abartow at law.pace.edu>
>> wrote:
>>
>> > This is just one (compelling to some of us) example of  law
>> > interfacing with the complicated feelings people have about bodily
>> > autonomy; see also
>> > http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234476
>> >
>> >
>> >
>> > Ann Bartow
>> > Professor of Law
>> > Pace Law School
>> > 78 North Broadway
>> > White Plains, New York 10603
>> > (914) 422-4097
>> > *****************
>> > Fulbright Scholar '11 - '12
>> > Tongji University
>> > Shanghai, People's Republic of China
>> >
>> >
>> > From: cyberprof-bounces at lists.stanford.edu
>> > [mailto:cyberprof-bounces at lists.stanford.edu] On Behalf Of Andrew
>> > Gilden
>> > Sent: Monday, April 08, 2013 4:20 PM
>> > To: Neil Richards
>> > Cc: cyberprof at lists.stanford.edu; Laura Quilter
>> > Subject: Re: [CyberProf] "...revenge porn is under siege."
>> >
>> > Just to add another data point to this discussion, the NJ statute was
>> used successfully in the prosecution of Dharun Ravi, the Rutgers student
>> who used a webcam to spy on his roommate Tyler Clementi.  Ravi was
>> convicted under the statute based on a rather broad reading of "sexual
>> contact":  Clementi and his friend were seen shirtless and kissing, for
>> only a few seconds.
>> >
>> >
>> > On Mon, Apr 8, 2013 at 7:56 AM, Neil Richards <
>> nmrichards at wulaw.wustl.edu> wrote:
>> > I'm pretty sure that true revenge porn could be (and should be)
>> punished consistent with the First Amendment, and the Pamela Anderson/Lee
>> case suggests that this might be true even for celebrities.  By "true," I
>> mean the intentional disclosure of a sex tape or pictures, usually by an
>> ex, for no purpose other than inflicting harm.
>> >
>> > I made a similar argument here:
>> http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1862264, which I am
>> revising for my forthcoming book on these and related issues (Intellectual
>> Privacy, OUP 2014).
>> >
>> > I think the law would be on stronger ground if it carved out public
>> figures, and if it added an element of intentionally intending injury (ie
>> limiting itself to true revenge porn, which seems analogous to true
>> threats).  But I agree with what's been called the "realist" trend in the
>> thread describing the law in practice.  Especially post-Stevens, the Court
>> has been very unwilling to create new exceptions to the First Amendment,
>> for many of the reasons Eugene points out.  But I think if a true revenge
>> porn against an ordinary person case came up, even such a "realist" court
>> would find liability.  Even Phelps reserved the question of internet
>> publication of non-newsworthy facts.
>> >
>> > Neil
>> >
>> > Neil M. Richards
>> > Professor of Law
>> > Washington University in St. Louis
>> > One Brookings Drive
>> > St. Louis MO 63130
>> > (314) 935-4794
>> > Fax (314) 935-5356
>> >
>> > website: http://law.wustl.edu/faculty/index.asp?id=314
>> > ssrn page:
>> > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=400644
>> > twitter: @neilmrichards
>> >
>> >
>> >
>> >
>> > From: cyberprof-bounces at lists.stanford.edu
>> > [mailto:cyberprof-bounces at lists.stanford.edu] On Behalf Of Laura
>> > Quilter
>> > Sent: Monday, April 08, 2013 9:43 AM
>> > To: cyberprof at lists.stanford.edu
>> >
>> > Subject: Re: [CyberProf] "...revenge porn is under siege."
>> >
>> > I'm not sure why revenge porn per se would be unprotected under the
>> Miller test for obscenity.
>> >
>> > Prurient is probably easy; and maybe lacks SLAPS value is not too hard
>> (especially for the non-Anthony Wiener variety), although I would want to
>> think more about it.
>> >
>> > But the middle prong, "depicting or describing ... sexual conduct"
>> seems like it would not be a good match for a lot of the nude photos that
>> end up on revenge porn shots, many of which would be still photos and not
>> "sexual conduct".
>> >
>> > Just from a common sense approach, the problem is not that these photos
>> are per se "obscene"; it is that they are non-consensual either in
>> distribution or in production.  That's more like the harms from child porn,
>> which are to the subject primarily.
>> >
>> > ----------------------------------
>> > Laura Markstein Quilter / lquilter at lquilter.net Librarian, Geek,
>> > Attorney, Teacher
>> >
>> >
>> > Copyright and Information Policy Librarian University of
>> > Massachusetts, Amherst lquilter at library.umass.edu
>> >
>> > Lecturer, Simmons College, GSLIS
>> > laura.quilter at simmons.edu
>> >
>> >
>> >
>> > On Mon, Apr 8, 2013 at 7:59 AM, David Opderbeck <dopderbeck at gmail.com>
>> wrote:
>> > I don't know that language of "exception" or "slippage" is appropriate.
>>    Revenge porn is not protected under Miller.  That which involves minors,
>> as much of it does, is unprotected under Ferber.
>> >
>> >
>> > David W. Opderbeck
>> > Seton Hall University Law School
>> > Professor of Law
>> > Director, Gibbons Institute of Law, Science & Technology
>> > 973.642.8496
>> >
>> >
>> >
>> > On Apr 7, 2013, at 10:09 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> wrote:
>> >
>> >                 Well, that may be what you think.  But many people
>> might be happy to carve out a Fourth, Fifth, or Sixth Amendment exception
>> for crimes that they see as particularly heinous, just as you're happy to
>> carve out a First Amendment exception (perhaps correctly) in this instance,
>> if they thought that the exception would be kept sufficiently narrow.  What
>> has kept many Justices from carving out such exceptions, I think, is
>> precisely the worry of slippage to much broader restrictions.
>> >
>> >                 Eugene
>> >
>> > From: David Opderbeck [mailto:dopderbeck at gmail.com]
>> > Sent: Sunday, April 07, 2013 6:45 PM
>> > To: Volokh, Eugene
>> > Cc: cyberprof at lists.stanford.edu
>> > Subject: Re: [CyberProf] "...revenge porn is under siege."
>> >
>> > All those examples are already over the hill.  Those aren't slippery
>> slope examples at all.
>> >
>> > David W. Opderbeck
>> > Seton Hall University Law School
>> > Professor of Law
>> > Director, Gibbons Institute of Law, Science & Technology
>> > 973.642.8496
>> >
>> >
>> >
>> > On Apr 7, 2013, at 7:55 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> wrote:
>> >
>> > Say that someone suggests allowing warrantless searches of people's
>> homes for child pornography - would we also say "slippery slope arguments
>> don't persuade [us] at all when we are talking about something so morally
>> heinous as child porn"?  Or allowing compelled self-incrimination in such
>> cases?  How about allowing convictions of the alleged child porn possessor
>> without confrontation of the witnesses against him?  Or perhaps allowing
>> convictions without jury trials in some hate crime cases, on the theory
>> that bigoted juries might refuse to convict, and the behavior is so
>> "morally heinous"?  Or allowing restrictions on songs that advocate murder
>> of police officers, on the theory that such songs are also morally heinous,
>> and certainly counsel extremely heinous behavior?
>> >
>> > Indeed, slippery slope risks from relaxation of constitutional rights
>> are especially strong when the case involves "morally heinous" behavior,
>> precisely because the perceived need to act seems so urgent.  And then some
>> years or decades down the pike, one sees the relaxation of the right
>> expanding to a broader and broader range of behavior.
>> >
>> > Again, as I mentioned, I think that limits on the publication of
>> sexually explicit photos of others might be constitutional.  But I think
>> that this should be considered with serious attention to the risk of
>> slippery slopes, rather than ignoring this risk because the behavior is so
>> "morally heinous."
>> >
>> > Eugene
>> >
>> > From: David Opderbeck [mailto:dopderbeck at gmail.com]
>> > Sent: Sunday, April 07, 2013 5:48 PM
>> > To: Volokh, Eugene
>> > Cc: cyberprof at lists.stanford.edu
>> > Subject: Re: [CyberProf] "...revenge porn is under siege."
>> >
>> > Slippery slope arguments don't persuade me at all when we are talking
>> about something so morally heinous as revenge porn.
>> >
>> > David W. Opderbeck
>> > Seton Hall University Law School
>> > Professor of Law
>> > Director, Gibbons Institute of Law, Science & Technology
>> > 973.642.8496
>> >
>> >
>> >
>> > On Apr 7, 2013, at 7:38 PM, "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>> wrote:
>> >
>> >                 I'm on the record as arguing that limits on the
>> publication of social security numbers are indeed constitutional, see
>> http://www.law.ucla.edu/volokh/facilitating.pdf, and that limits on the
>> publication of sexually explicit photos of others might be constitutional,
>> too, seehttp://www.law.ucla.edu/volokh/privacy.pdf .  But the worry
>> about such limits is precisely how - in a system built on precedent and
>> analogy - such restrictions will become the foundations for restrictions on
>> other kinds of speech as well, often with little attempt to cabin those
>> analogies.  Arguments that, because limits on the publication of social
>> security numbers are permissible, limits on the publication of sexually
>> themed images of others are permissible, too, make me wonder what the next
>> step in the chain of analogy will be (especially given that this step in
>> the chain seems so large).
>> >
>> >                 Eugene
>> >
>> > From: cyberprof-bounces at lists.stanford.edu
>> > [mailto:cyberprof-bounces at lists.stanford.edu] On Behalf OfDavid
>> > Opderbeck
>> > Sent: Sunday, April 07, 2013 5:34 PM
>> > To: Peter Swire
>> > Cc: cyberprof at lists.stanford.edu
>> > Subject: Re: [CyberProf] "...revenge porn is under siege."
>> >
>> > From a "realist" perspective you might be right, but from a normative
>> perspective that values both free speech and privacy, this would not be a
>> good thing.
>> >
>> > David W. Opderbeck
>> > Seton Hall University Law School
>> > Professor of Law
>> > Director, Gibbons Institute of Law, Science & Technology
>> > 973.642.8496
>> >
>>
>
> >
>> > --
>> > Andrew Gilden
>> > Stanford Law Fellow
>> >
>> > Crown Quadrangle
>> > 559 Nathan Abbott Way
>> > Stanford, CA 94305-8610
>> > (650) 721-2101
>> > agilden at law.stanford.edu
>> > --++**==--++**==--++**==--++**==--++**==--++**==--++**==
>> > cyberprof mailing list
>> > cyberprof at lists.stanford.edu
>> > https://mailman.stanford.edu/mailman/listinfo/cyberprof
>>
>>
>>
>
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