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No Need To Take Revenge Porn Lying Down

Posted on Jun 23, 2015 in Blog

The age of the internet and digital media has created new problems in protecting personal privacy. The viral nature of online intimate and explicit images allows for any individual image to quickly spread across the internet. Once an image has spread across the internet, there are a limited number of ways to stop its further distribution.

This developing problem was recently in the news due to the online posting of hacked intimate photographs of celebrities, including Jennifer Lawrence, Kirsten Dunst, Justin Verlander and Kate Upton. The media was generally outraged by the invasion of privacy. While celebrities may have the support of the media and the ability to pressure websites into taking down their intimate pictures, the rest of the world is left to figure out their own solution.

Websites such as isanyoneup.com (sold in 2012), myex.com and thedirty.com, serve as a venue for users to upload intimate and explicit images of other individuals without their consent. Some websites also allow users to attach personal contact information to the images. This led to victims being contacted by random internet users, employers, friends and family. The emotional distress and embarrassment of these intimate and explicit images being publically available is overwhelming to many of the victims.

Historically, victims attempted to contact websites directly and requested they take down their intimate images. Websites commonly refused these requests and cited to Section 230 of the Communications Decency Act, (CDA) which limits the liability on websites that host user generated content. Section 230 states, “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1). Accordingly, Section 230 of the CDA allows websites to host images generated by third parties free from liability. However, Section 230 does not shield websites from claims of copyright infringement.

The Digital Millennium Copyright Act (DMCA) allows copyright owners to interact with online service providers (OSP) that are unlawfully hosting material protected by copyright. The DMCA defines an OSP as “a provider of online services or network access, of the operator of facilities therefor.” 17 U.S.C. § 512(k)(1)(B). Accordingly, under the DMCA, websites that host user generated content, such as isanyoneup.com, myex.com and thedirty.com are considered OSPs.

To be exempt from liability for copyright infringement under the DMCA, an OSP must (1) not have actual knowledge that the material or an activity using the material on the system or network is infringing; (2) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or (3) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material. 17 U.S.C. § 512(c)(1)(A)(i)-(iii). The “knowledge or awareness” referenced in element (3) above is commonly referred to as a “takedown notice.” A takedown notice requires a copyright owner, or a third party authorized by a copyright owner, to submit a letter to an OSP that includes: the signature of the copyright owner; a URL of the infringing website; an identification of the infringing material; contact information for the copyright holder; a statement that the copyright holder has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and a statement that the information in the letter is accurate under the penalty of perjury. 17 U.S.C. § 512(c)(3)(A)(i)-(vi).

The DMCA is a powerful tool to help fight against online copyright infringement, but does the DMCA and general copyright law affect the unauthorized use of intimate photographs?

Surprisingly, a majority of the explicit images that are posted to websites are taken by the victims themselves. These explicit pictures are typically sent to a loved one via a text message or hacked off the victim’s cell phone and uploaded to the internet without the victim’s authorization. When a person takes their own picture, they are the author and owner of the copyright in the photograph. As the owner of the copyright, the victim can send a takedown notice under the DMCA to the website hosting the images or initiate a copyright infringement lawsuit.

Upon registration of their images with the Copyright Office, victims can initiate a copyright infringement lawsuit against the individual who uploaded the images without authorization. While it may be embarrassing for a victim to register their intimate images with the Copyright Office, many victims feel the damage is already done by the time their images have spread across the internet. It may be a victim’s best option is to use the copyright laws to attack the individual who first distributed their images.

In late 2014 a woman residing in Los Angeles, California initiated a copyright infringement lawsuit against an ex-boyfriend from Philadelphia, Pennsylvania. Jane Doe v. David K. Elam II, Civil Action No. 2:14-cv-9788 (C.D.Cal. 2014). The complaint alleges the parties were in a relationship from 2012 through the spring of 2013, during which, the plaintiff sent several intimate photographs and videos to the defendant. The plaintiff alleges that both parties agreed that these photographs and videos were to remain private. The complaint further states that following the end of their relationship, the defendant posted the “private, intimate photographs and videos on the internet as part of a … campaign explicitly designed to destroy [Plaintiff].” In 2013, the plaintiff registered the images with the Copyright Office. Through her attorney, the plaintiff sent out numerous DMCA takedown notices to various websites, however, “hundreds of links to photographs and videos of [Plaintiff] remained online through the fall of 2013.” The plaintiff claims, without her permission, the defendant willfully and intentionally reproduced and distributed her images to numerous websites, in violation of her copyright. The plaintiff is seeking injunctive relief to stop the defendant from further distributing her intimate images, along with actual and statutory damages. This case is currently pending.

The case above is just one example of the numerous cases currently pending in district courts across the country. The facts of the case above are common to many of the other pending cases. Hopefully, once a number of these cases resolve, and the victims are awarded significant damages, people will think twice before they upload another individual’s private images without their consent.

If you are interested in a slightly more entertaining take on the issue, we encourage you to check out the June 21, 2015 episode of Last Week Tonight with John Oliver.

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