No, copyright is not the answer to revenge porn

Young woman, fear

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.

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