David Newhoff, Author at The Illusion of More

Is a Revenge Porn Bill Next?

When nude photos of celebrities were leaked and distributed all over the internet in 2014, Jennifer Lawrence, as one of the victims, called it a “sex crime.” Meanwhile, the idea that the platforms themselves bore much responsibility to remove the image was met with mixed responses. The leadership at Reddit was so high on the fumes of its own utopian bullshit that they compared governance of the site to that of a democratic nation which should not impose moral choices on its citizens. Into that bro-publica climate, Representative Jackie Speier (D-CA) introduced a bill in July 2016 that would make “revenge porn” a federal crime. The usual defenders of the web raised the same red flags, asserting that even a well-intended bill of this nature would lead to over-censorship online. Then, little was heard about this proposal, except perhaps inside the Beltway.

But suddenly, the landscape is very different, and I would not be surprised if we see movement on some type of “revenge porn” bill in 2018. In light of the head-spinning litany of sexual-assault allegations in the news, the general dilution of Silicon Valley’s political clout, and what seems like the inevitable passage of the SESTA bill, Rep. Speier’s bill might make relatively smooth progress toward ratification next year. If nothing else, it’s easy to imagine Congress passing this kind of legislation in a scramble to get on the right side of the historic shift we’re witnessing with regard to sexual harassment in every context.

Meanwhile, you might have missed the news that Facebook’s recently proposed an internal “solution” to combat revenge-porn, which was appropriately scorned, if not outright mocked, because it requires trusting their “trained” team with your intimate photos so they can protect you. These are the same guys who couldn’t do the math on Russians buying American political ads with rubles. Activist and author Violet Blue wrote a great piece for Endgadget describing why Facebook’s counter-revenge-porn proposal is not wearing any clothes. “The process presumes the victim has these photos in the first place, and cavalierly ignores that this person is living in a nightmarish hellscape trauma that is in no way re-experienced by handing the instrument of their terror to an anonymous, unaccountable, possibly grey alien Facebook employee,” she writes.

The Speier Bill

It’s actually a misnomer to call H.R. 5896 a “revenge porn” bill because revenge porn is a specific act, usually perpetrated by angry ex-boyfriends who get back at women who’ve broken up with them by distributing nude or sexually-explicit imagery they might have made together as a couple. Speier’s bill, titled the “Intimate Privacy Protection Act,” bypasses the issue of motive altogether and merely states that anyone who distributes intimate images—the language defines these explicitly—of adults with “reckless disregard for the lack of consent” of the subject could potentially face federal charges.

Often, the harm does not end with mere embarrassment. Instead, the images may serve as the predicate for a sustained, emotional assault by a male cyber-mob hounding a female victim, labeling her a “slut,” “bitch,” “whore,” and so on. Cites that trade in unauthorized intimate images may extort payments from victims for removal of their images, but there is little to stop the images from migrating virally once online. As such, remedies for removal are nearly impossible, and any effort on the part of the victim to extricate herself from the “hellscape,” as Violet Blue puts it, is more likely to exacerbate the emotional trauma than to ameliorate it.

As an aside, yes, every kind of sex education in the world ought to include a segment on the hazards of making intimate images with networked devices. It’s hard to believe that anyone is still naive enough to think that images created on smart phones, etc. can be kept private without substantial risk. But that kind of personal awareness does not preclude criminalizing the decision by an individual or entity to distribute these images without permission.

Thirty-eight states plus the District of Columbia have some type of law criminalizing “revenge porn,” but given the geographical irrelevance of internet distribution, it seems only reasonable to proscribe the conduct as part of the federal criminal code. Assuming this bill does see any action in 2018, we can expect the usual suspects—EFF, PublicKnowledge, Techdirt, et al—to cry havoc and declare once again the danger that such proposals pose to free speech on the internet.

Whether this chorus will be joined by major platforms like Google, Facebook, and Twitter may not be as predictable as it would have been just a year ago. I suspect these companies are all recalibrating how to spend their political capital now that public sentiment is less inclined to give them carte blanche; and distributing intimate images without permission is not a “cause” most people are going to support. Regardless, when it comes to the various harms that can be caused via cyberspace, it seems the public is catching on to two realities: 1) that an internet policy doctrine based on the natural goodness of people is utter folly; and 2) the tech companies are in way over their heads.

Copyright Small Claims: A Solution for Many Creators

In my experience, the number-one complaint about contemporary copyright is that it is unenforceable in the digital age. Independent creators take one look at the scope of infringement relative to the cost of a single litigation and give up on the idea that they have any control. Many infringers—from casual to corporate—are either unaware that they’re infringing or they know how unlikely enforcement is for small creators; and this breeds the kind of smug responses we read about all the time. You know the ones. Where even a major brand uses a photograph for its marketing and then tells the photographer he has a lot of nerve to ask for money and should actually be grateful for the “exposure.”

On top of all this day-to-day infringement, the sage critics of copyright, those self-appointed defenders of the tubes, tell everyone there is no way to enforce copyrights online without sabotaging the delicate workings of the web. Some of these ivory-tower think-tankers even claim to care about authors with a sympathetic shrug and declare, “Artists do deserve to get paid, but we can’t afford to damage the innovation. You don’t want to hurt the innovation, do you?” Ergo, non-enforcement for thousands of small-scale and start-up creators becomes a predicate for steadily eroding copyright as principle.

The Small Claims Bill

It won’t solve every problem, but it should make a tangible difference for a significant population of creators who currently do not avail themselves of any enforcement procedure, but would if the barriers were lower. And frankly, copyright critics and internet-advocates (the ones who claim to care about creators) should actually support this bill because it establishes a forum for narrow, voluntary, and limited resolution between a rights holder and an alleged infringer without creating even a hint of a new liability implication for investing in web platforms.

H.R. 3945, the Copyright Alternative in Small-Claims Enforcement Act (CASE) has been more than a decade in the works. This amendment to the copyright law would establish a three-officer Copyright Claims Board within the Copyright Office, comprising two expert copyright attorneys and one attorney with specific experience in alternative dispute resolution. Rights holders can file complaints through electronic communications, without an attorney, and respondents may avail themselves of all the same defenses (e.g. fair use) that may be asserted in a federal litigation.

A Few Key Features

The small-claim option is voluntary for all parties and has the legal enforcement status of “alternative dispute resolution.” It does not preclude either claimants or respondents from availing themselves of litigation by opting out of the small-claim process; and re-litigation is an option if claims or counterclaims were not raised and decided upon by the Board. (See CORRECTION note below.) Both parties must agree to specific opt-out obligations. For instance, a respondent has 30 days to opt out upon original notice of proceeding or he/she may lose in a default judgment that is then enforceable through any court in the U.S.

A rights holder may initiate a small claim for a work that is not registered but must file a registration concurrent with the proceeding. If the work was not registered at the time of infringement, this limits the maximum award the rights holder may seek through the small-claim process, but it is an option for some relief that does not exist in federal litigation, which is impossible for an unregistered work.**

One big advantage to the small-claim provision that rights holders and copyright critics should like (though I wouldn’t hold my breath for the critics) is that the Copyright Claims Board is a copyright only panel. This is significant because ordinary court filings are sometimes bogged down by a litany of complaints or defenses that have little to do with copyright infringement, and the courts have to slog through these while the meter is running. Moreover, the small-claim panel’s specific expertise in copyright law is not necessarily going to be present in any number of federal judges, who might be presiding over hate crime in the morning and copyright in the afternoon. This copyright-specific aspect of the Board should be beneficial to both claimants and respondents.

Both claimants and respondents can avail themselves of the small-claim option without attending proceedings in person. Most of the process is handled through electronic filings with a proposal to use video conferencing for discussion and resolution. One of the myths being spread about this bill is that both parties are required to travel to Washington, D.C. Not true.

Attorneys may be employed by either party but are not required. This can prove particularly helpful in cases where the rights holder seeks a relatively modest settlement for an infringement he does not consider highly egregious or highly costly to his interests.

Although some of the usual copyright haters, like Public Knowledge, assert that the Board will become a “clearing house for awarding fees to every copyright troll” in the country, this assumption actually makes little sense. For example, the bill contains anti-abuse provisions that don’t exist in regular court proceedings. A bad-faith claimant can bring lousy copyright cases to court week after week. But a claimant who files bad-faith (i.e. harassing) complaints with the Copyright Claims Board may face financial penalties and/or be barred from using the small claims option for a year.

Rebalancing the Landscape

In everyday practice, a vast population of rights holders you’ve never heard of have neither the time nor the interest to restrict every casual use of their work online; and by the same token, a vast number of users you’ve never heard of don’t even understand when they’re infringing. This problem has been exacerbated by PR funded by the internet industry, which has a vested interest in weakening copyright and could not care less who among these nameless parties is harmed amid all the confusion.

These authors, who want to maintain control over their work, are not out to punish every blogger and they are certainly not expecting to earn big money through litigation. But the entrenched assumption that everything online is there for the taking has to stop. Most infringements are the result of laziness, ignorance, or greed—all of which is very easily ameliorated with a basic (and free-to-use) guideline: don’t use what isn’t yours without permission. And if the small claim option gives more independent creators a path to enforce their rights, then there’s a decent chance that small-time infringers will discover the value of this very simple rule of thumb.

A New Reason to Register Works

One of the concerns raised by my friend Leslie Burns is that the small claim provision will act as a disincentive to register works. She may be right with regard to people’s habits—artists do hate paperwork—but I would recommend that creators view the small claim provision as a great reason to register works because it provides a new path for enforcement that is only strengthened by timely registration.* Not only can a claim for a timely-registered work receive a higher maximum award for damages, but registration also shows an alleged infringer (respondent) that the author is serious about the work and the claim, and this should act as an incentive for the respondent to opt-in to the cheaper and easier small-claim process.
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*Timely registration has a technical meaning in the statute.

**Apropos a from a new reader, this does not reject the possibility of prevailing in a claim for actual damages for infringement of an unregistered work, but such claims are highly unlikely to avail themselves of the small claim option.

CORRECTION: As originally published, I stated that parties could still litigate without restriction after the judgment of the Board. This was incorrect.

Hand photo by TanyaRozhnovskaya

Digital-Age Copyright: Photographs and the News

You might think that among the most straightforward relationships between a user and a creator of a copyrighted work would be that of a news organization and a photographer—namely that the news organization should license the photographs it uses for any of its stories. It is also common-sensical that whenever a news organization displays a photograph in a manner that either disseminates news under its brand and/or promotes its brand, that the organization is deriving commercial benefit from its display of the photographer’s work. As such, it should not matter—in fact the nature of the web demands that it must not matter—where the image is actually hosted. Unfortunately, that’s not necessarily how the law works right now.

This article in Above the Law by attorney Scott Alan Burroughs alludes to a case that exemplifies how the current copyright law underserves creators in the digital age. At issue is a photograph of athlete Tom Brady, taken by photographer Justin Goldman in 2016, and used without permission, first by Breitbart News and then by ten other news organizations. Goldman alleges infringement of his exclusive right to display his work and seeks relief in the form of damages and attorney fees from all eleven news organizations.

The EFF filed an amicus brief (10/5/17) on behalf of the defendants, asserting the precedent established by the 9th Circuit in Perfect 10 v. Amazon.com (a.k.a Perfect 10 v. Google) (2007), in which the plaintiff argued that Google violated the display right by making full-size images available via the Google Image Search tool. The court held that because these full-size images were hosted in various places around the web and not on Google’s servers, that Google was not in possession of “copies” according to the plain language of the law (Sec. 101) and could not, therefore, infringe the display right.

The decision in Perfect 10 provided a precedent known as the “server test,” and the EFF may be correct that it will be the standard applied in the Goldman case. But it shouldn’t be because it represents an easy end-run around the public display right that effectively obliterates the right in cyberspace. It is also important to note that linking to pages (what is sometimes called “deep-linking”) should not be viewed as infringing, but this kind of “in-line linking” whereby a site embeds code to cause an image to appear on its page while the image is hosted by another party’s server, is the problem. (Meanwhile, note that Playboy is suing BoingBoing for displaying centerfold images in exactly the same manner.)**

The Server Test Doesn’t Make Sense

To maintain the purpose of copyright with respect to the way the internet functions, the standard in a case like Goldman v. Breitbart et al should not turn on whose server hosts a copy of the photograph, but who takes action to display the photograph and for what purpose. This interpretation of the author’s right to display works would conform to any reasonable person’s understanding of the actual market experience. “The argument [for the server test], in essence, is that for-profit sites should be able to publish whatever they want without the consent of the artist so long as the photograph or video is published via an embed. This argument has no merit, though, because the end result is exactly the same to the viewer, and the viewer is the basis for the site’s profits,” Burroughs writes.

The news corporations in this case are making use of Goldman’s photograph to generate interest in whatever story they want people to read and to promote their brands online. Clearly, they are leveraging the value created by the photographer, which is exactly what copyright is designed to protect. As such, licensing in these instances would be consistent with the goals of copyright law, regardless of the technical means by which a user makes the display of the protected work visible to its audience. Moreover, the photographer may be earning revenue through advertising by allowing an image to be used on Site A, but if Site B, C, and D in-line link the image to their pages, the photographer loses revenue.

Clearly, this has implications beyond news organizations. If, for instance, Johnson & Johnson, by the rationale applied in Perfect 10, were to display photographs for marketing purposes without permission, this would demonstrably undermine copyright’s intent; and it is hard to imagine that the public would actually support this kind of corporate appropriation of individual labor without permission or compensation. Certainly, every time a site like PetaPixel shares another story in which a business uses a photographer’s work for advertising without permission, I never see anyone cheer for the corporate infringer. (Though they may privately light sparklers or something over at the EFF.)

Is Legislative Reform Needed?

Be it far from this layman to question the statutory interpretations of the 9th Circuit Court of Appeals, but whether it’s in Goldman or another case, a few attorney colleagues tell me that the ruling in Perfect 10 is hardly the final word. And many of them think the 9th Circuit erred. But if that court’s “plain reading” of the statute holds sway in future rulings, then it may be necessary to clarify any pre-digital-age, statutory vagueness pertaining to the right make works available.

In 2016, the U.S. Copyright Office issued guidance on the Making Available Right apropos U.S. obligation to WIPO Internet Treaties. Although the Office recommended that legislative amendment was not needed vis-a-vis the treaties, the Register did recognize various inconsistencies in court rulings where cyberspace meets the rights of distribution, public performance, and public display. In this regard, the Office provided a few possible avenues Congress could pursue to clarify these three exclusive rights relative to the internet, but also warned against approaches that would “represent a sweeping reconfiguration of U.S. copyright law.”

In particular, the guidelines state, “Should Congress … wish to clarify that the public performance and display rights cover offers to communicate a work, it could consider amending the Transmit Clause (§101) to provide that offering to transmit or otherwise communicate a performance or display to the public satisfies the definition of performing or displaying a work ‘publicly.’” [Emphasis added]

A statutory change like this would confirm that the display right may be infringed by a party that makes a work publicly viewable, even without hosting a copy of the work. This would correspond with common sense and the practical realities of the digital market, though many attorneys are likely to view such an amendment as unnecessary. Displaying an image on your site, no matter how it got there, ought to implicate the display right.

With pending proposals to create a small claims process for copyright infringement, it will be important to see what the courts do in cases like Goldman v. Breitbart. This is because visual works are by far the most frequently and casually infringed works on the internet, and visual artists like photographers theoretically have much to gain from both a small-claims process and restoration of a meaningful display right.

Yes, any change in the status quo made by either the courts or Congress would make Google et al go ballistic; and the EFF would have to sit shiva for a year. But it is well past time to drop the whole “copyright stifles everything” rhetoric along with all the other tech-utopian nonsense that nobody seems to be buying anymore. It is time to recognize that technicalities like the “server test” stifle authors and creators without whom this whole internet thing would be utterly useless.

**CORRECTION: Playboy was indeed suing Boing Boing at the time of this post but not for exactly the same conduct. See post here.

Author: David Newhoff