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Summary:

The spread of revenge porn, which is used to terrorize women, has led some to hail copyright law as a magic bullet solution. It won’t work and could do more harm than good. There are better options.

Revenge porn sites, which encourage people to post nude photos of ex-girlfriends and others without permission, have resulted in humiliation, career damage and even suicide. And while the operators of such sites may be odious human beings, that doesn’t necessarily mean what they do is illegal.

While law enforcement has caught up with some of the most outrageous perpetrators — including Hunter Moore, who ran the now-defunct Is Anyone Up — other sites are still up and running. The ongoing problem has led some to propose a different solution — copyright law — as a quick and easy way for victims of revenge porn to get their photos off the internet. A closer look, however, shows this is a bad idea.

A crack in the law

Last fall, Jezebel published Charlotte Laws’ “One woman’s dangerous war against the most hated man on the internet,” the best account to date of revenge porn and the types of people who operate these websites. The article described the pain the sites can inflict on women (men can be victims too, but women are by far the most common targets), and how the legal system often fails to help them.

The problem, from a legal perspective, is that laws designed to protect the internet and free speech also protect people like the revenge-porn site operators. Specifically, websites that rely on third-party content are immune from defamation and invasion of privacy lawsuits — meaning that a woman can try to sue the person who submitted a photo of her, but not the website that hosts it. In practice, this often means there is no realistic way to remove the photographs.

In response, Amanda Levendowski, writing in the Atlantic this week, suggests that copyright law is “our best weapon against revenge porn.” Since most nude photos are “selfies,” she says, women own the rights in those photographs and, better yet, the broad immunity law that ordinarily shields web site operators from liability doesn’t apply in cases of copyright.  This means a woman can simply send a note demanding the photo be taken down, and under the rules of copyright law, the site owner will be liable if the photo isn’t removed.

Levendowski also touts the copyright approach as a way to solve the problem without passing new criminal laws and, in a related academic paper, concludes that “for the vast majority of revenge porn victims, copyright presents an effective, efficient solution.” Other news outlets, including NPR and Business Insider, have also echoed the idea that copyright will solve the problem. Alas, this isn’t true.

The wrong tool

Using copyright to combat revenge porn is an appealing idea, but also one that will rarely work and that could do more harm than good.

First, even if 80 percent of revenge porn photos are selfies, as Levendowski claims, that doesn’t mean that victims  can easily claim damages “to the tune of up to $150,000 per photo.” Under the Copyright Act, in order to be eligible to claim that oft-cited $150,000 damages figure (the actual number ranges from $750 to $150,000), a person must first register the photo with the U.S. Copyright Office — which requires paying a fee and submitting copies of the (nude) photos to the U.S. government. It’s unlikely that many revenge porn victims will have the will and time to go through that process.

In any event, whether the photo is registered or not, the only thing a copyright notice does do is oblige the revenge porn operator to remove the photo one time. This means that anyone can resubmit the photo, possibly requiring the victim to file a takedown notice over and over again. And, as Levendowski herself notes, the copyright notices may serve to draw more attention to the photos than existed before. In most revenge porn cases, copyright will provide some victims with a temporary reprieve at best.

On a broader level, this approach also risks legitimizing the use of copyright as a backdoor mechanism for censorship. As recent transparency reports from Google reveal, internet companies are already subject to literally tens of millions of copyright takedown requests every month — many of which are not valid in the first place. Using copyright to fight revenge porn would be another example of using the law for something other than its stated purpose of encouraging the creation of artistic work, and could potentially lead to a number of unintended consequences such as stifling news reporting.

The copyright takedown process is currently being abused enough as it is — we should not be looking for new ways to expand it.

The way to stop revenge porn

If copyright isn’t the answer to stopping revenge porn, what is? As it turns out, the solution may have less to do with the law than with changing political and law enforcement priorities. As Charlotte Laws explains in the Jezebel post, one of her most frustrating experiences was the reaction of the local police department, which not only failed to take action but implied that her daughter was to blame for a topless photo on a revenge porn site. In that case, the FBI ultimately took action after the writer assembled copious amounts of evidence that revealed coercion, hacking and photoshopping.

This, then, appears to be the way forward: persuading law enforcement that revenge porn victims are as much of a priority as pirated movies or counterfeit Super Bowl merchandise. It won’t, of course, be an easy task.

In another recent well-publicized article, “Why Women aren’t Welcome on the Internet,” writer Amanda Hess describes recounting rape and death threats from social media to a police officer, and his response: “The cop anchored his hands on his belt, looked me in the eye, and said, ‘What is Twitter?'”

Hess’ story shows that local officials still have a lot to learn, but the good news is that more law enforcement agencies are becoming attuned to online threats to women.

In December, for instance, California officials indicted “one revenge porn operator on charges of identity theft, conspiracy and extortion. And last month, the FBI formally charged revenge porn king Hunter Moore with conspiracy to violate federal hacking laws. These cases suggest that, if law enforcement agents look hard at revenge porn sites, they will find at least some element of illegality behind them. (That also appears to be the case with mugshot sites, which, as the New York Times reported, involve an element of extortion)

Finally, those opposed to revenge porn sites can also employ other means of pressure to bring down the sites. This includes targeting Western Union, Visa and other payment processors who do business with the “reputation management” sites that often work hand-in-glove with the revenge porn sites. Opponents can also take encouragement from the fact that they’re not alone; nonprofit groups like WithoutMyConsent are emerging to offer legal advice, support and advocacy.

Revenge porn is a big problem that won’t disappear anytime soon, but the solution to it doesn’t lie in copyright or even new laws. Instead, it requires police forces and prosecutors to make more use of the tools they already have — and to make the issue a priority in the first place.

  1. Wouldn’t the ultimate answer to stopping revenge porn is to NOT take compromising pictures of yourself? Especially when you take them for someone else’s benefit. How many people have created a sex tape, with the other person promising it will never leave their hands or see the light of day? Right. You can bet that tape will be viewed by everyone that person knows, their friend’s friends, and half the Internet will have a copy by sundown.

    Believe it or not, the word ‘no’ still applies long before the picture is taken. Let’s apply common sense and think first, before the fact, not afterwards when the damage has been done, just waiting to be exploited.

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    1. Great point – but that doesn’t exactly help the victims after the fact.

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    2. Ultimately, this boils down to blaming the victim, just like people blame the woman who stumbles out of a bar for getting raped. No, it’s not smart to put oneself in potentially vulnerable situations, but that doesn’t mean the perpetrators shouldn’t be prosecuted to the full extent of the law, and that the woman should have tools available to fight back, and that society should support her getting justice.

      It’s very easy to talk about “common sense” in an abstract fashion, but the phenomenon of “falling in love” is by it’s nature an overriding of judgment and of perceiving the full reality of who the other person actually is. It’s a kind of psychosis with the purpose of getting us to reproduce with real, flawed people.

      Few people would have sex with someone they saw as so vindictive that they would try to destroy them, and it doesn’t show much compassion to realize that there is a built-in, biological reason why someone might be incapable of considering implications of their behavior, at least at the very beginning.

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    3. This is absurd. My husband is in Afghanistan right now and I won’t see him for a year. Would you suggest that I refuse to take advantage of modern technology to foster intimacy and instead assume that he is secretly a lowlife scumbag?

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  2. The point I got from the Amanda Levendowski article is not that it is the best weapon possible, but that it is the best weapon available right now, at a time in our society in which protection of women from all kinds of abuse, not just revenge porn, is not, and has never been a priority. It’s a seriously flawed strategy for all of the reasons in this article, but if prosecutors don’t care, then the DMCA is one of the few avenues available to a private citizen right now.

    The idea that women victims deserve the abuse they get if they go to that bar, wear “seductive” clothing, have sex with anyone but a husband for the purpose of procreation, or taking that selfie is deeply ingrained, and what this author proposes follows from changing these attitudes. I’m totally for that, and that prosecutors make use of the tools they have to, but the pace of that shift has been glacial, even as the last 90 years has seen greater (but not complete) legal equality.

    I worry that the targeting of financial processors could be an even greater threat to free speech than the DMCA were this to become a routine political tactic, because majorities can then use such tactics to silence minority opinions that perhaps the likes of Visa wouldn’t want to be losing money over.

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  3. So, to be clear, this article is saying – among other things – that women should not exercise their own lawful copyright over these images because it “risks legitimizing the use of copyright as a backdoor mechanism for censorship.” That’s straight-up EFF bananas, and reflects the voice of those anti-copyright extremists that advocate sacrificing important individual, existing legal rights in order to protect a Barlow-esque digital eden that never has and never will exist.

    Clearly put, it is not “censorship” to lawfully enforce one’s rights against distribution of full copies of one’s own original work. Full stop. If the revenge porn hustlers feel that they have a defensible case, and that this is undue censorship, they can have a court weigh in to hear the argument that the public’s right to see women bullied over these images outweighs the copyright interests.

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    1. The fact that victims already have rights in some of the pictures being exploited and aren’t successfully using the remedies available to them rather confirms that copyright is not the answer.

      Whether it should be used in such a fashion is a matter of opinion, but the objective evidence shows it is not *presently* working because 80% of these works are allegedly protected and the existing, incredibly powerful copyright laws are evidently doing the victims no good. Honestly, the idea is you register your topless selfie to get statutory damages, and then it permanently resides in a publicly available government database strikes me as a rather bad idea.

      The only reason why this might be a good idea is that prosecutors seem to care far more about preventing IP infringement than protecting women from this kind of victimization. So, yeah, one solution is to brand this activity IP infringement and then we’ll have fooled them. Genius.

      The other solution might be to find prosecutors with, you know, **the right priorities.** People shouldn’t be sending their nude pics to Washington to get prosecutors to do their job. That’s just ridiculous.

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