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

> From: Laura Quilter <lquilter(a)lquilter.net> > Subject: Re: [CyberProf] "...revenge porn is under siege." > Date: April 9, 2013 8:01:06 AM PDT > To: "cyberprof(a)lists.stanford.edu" <cyberprof(a)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(a)lquilter.net > Librarian, Geek, Attorney, Teacher > > > Copyright and Information Policy Librarian > University of Massachusetts, Amherst > lquilter(a)library.umass.edu > > Lecturer, Simmons College, GSLIS > laura.quilter(a)simmons.edu > > > > > On Tue, Apr 9, 2013 at 9:50 AM, Bartow, Ann M. <abartow(a)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/… > 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@law.ucla.edu] > Sent: Tuesday, April 09, 2013 9:28 AM > To: Bartow, Ann M.; cyberprof(a)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(a)lists.stanford.edu [mailto:cyberprof-bounces@lists.stanford.edu] On Behalf Of Bartow, Ann M. > Sent: Tuesday, April 09, 2013 6:03 AM > To: cyberprof(a)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-… > > > 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@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(a)lists.stanford.edu [mailto:cyberprof-bounces@lists.stanford.edu] On Behalf Of Bartow, Ann M. > Sent: Monday, April 08, 2013 5:22 PM > To: Fred von Lohmann > Cc: cyberprof(a)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/ca6/11-3445/11-3445-20… > 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-Gon… > > > > > 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(a)vonlohmann.com] > Sent: Monday, April 8, 2013 7:57 PM > To: Bartow, Ann M. > Cc: cyberprof(a)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(a)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(a)lists.stanford.edu > > [mailto:cyberprof-bounces@lists.stanford.edu] On Behalf Of Andrew > > Gilden > > Sent: Monday, April 08, 2013 4:20 PM > > To: Neil Richards > > Cc: cyberprof(a)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(a)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(a)lists.stanford.edu > > [mailto:cyberprof-bounces@lists.stanford.edu] On Behalf Of Laura > > Quilter > > Sent: Monday, April 08, 2013 9:43 AM > > To: cyberprof(a)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(a)lquilter.net Librarian, Geek, > > Attorney, Teacher > > > > > > Copyright and Information Policy Librarian University of > > Massachusetts, Amherst lquilter(a)library.umass.edu > > > > Lecturer, Simmons College, GSLIS > > laura.quilter(a)simmons.edu > > > > > > > > On Mon, Apr 8, 2013 at 7:59 AM, David Opderbeck <dopderbeck(a)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(a)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@gmail.com] > > Sent: Sunday, April 07, 2013 6:45 PM > > To: Volokh, Eugene > > Cc: cyberprof(a)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(a)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@gmail.com] > > Sent: Sunday, April 07, 2013 5:48 PM > > To: Volokh, Eugene > > Cc: cyberprof(a)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(a)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(a)lists.stanford.edu > > [mailto:cyberprof-bounces@lists.stanford.edu] On Behalf OfDavid > > Opderbeck > > Sent: Sunday, April 07, 2013 5:34 PM > > To: Peter Swire > > Cc: cyberprof(a)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 > >

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