California Outlaws 'Revenge Porn' 528
coondoggie writes "Call it a modern day love story: Boy meets girl; they 'like' each other; they privately sext naked pics of each other to celebrate; girl loses interest, breaks it off; guy responds by posting previously private pics to Internet site specializing in revenge; girl has little recourse, suffers much humiliation, ridicule. There is a lot of pressure to change the outcome of such wretched stories, which seem to be pervasive these days. Some relief is on the way the way, at least in California, where this week the governor signed one of the nation's first laws making so-called 'revenge porn' illegal. Specifically, the bill prevents people from electronically distributing or posting naked pictures of ex-romantic partners after a break-up with the intent to shame the person publicly."
Intent is the key word... (Score:3, Interesting)
...but judge, my intent was to impress my friends, potential girlfriends, etc. with the hotness of my ex. ...but judge, my intent was to let other guys know that such a hottie was now available, so that she might find a new boyfriend more easily. ...but judge, this photo is a work of art and thus protected by the first amendment.
etc...
Intent seems a high barrier to prove...
Re:So... can they do it pre-breakup? (Score:4, Interesting)
Not exactly true. Otherwise, posting any picture on the net would be illegal.
Its almost impossible to take a picture in any city and not have at least one person appear in it.
There is only an expectation of a release if your photo will be used as an endorsement or an advertisement.
I've appeared in hundreds of news photos, sports photos (due to having great seats close to the action).
I appear on several people's facebook pages even though I have no facebook account. If you step outside
your home, you are fair game.
Re:How about (Score:5, Interesting)
Cameras have been around for a long time, and even back when you didn't run the risk of images being broadcast to the whole world in an instant, folks generally seemed smart enough to NOT let themselves get photographed in compromising solutions.
Back in those days, photos were taken on photographic film which had to be developed, and in 99.9% of cases by someone not taking the photo or in the photo. Therefore, someone else would see the nudey.
Machines were invented for developing consumer photographic films but still they would be inspected by humans for quality control. They get to see the nudey.
In some countries, like the UK, with strict, old-fashioned prurient laws about the nudey, pictures of boobs and front-bottoms (male and female) could land you in jail with a conviction as a sexual pervert.
So in the "olden days" i.e. pre-cheap digital cameras, nudey pictures were very rare.
Re:This law is to prtect Republicans. (Score:5, Interesting)
This law was passed in California. Republicans there are as rare as Christians in Saudi Arabia!
So Democrats elected Regan and Schwarzenegger?
Re:How about (Score:5, Interesting)
we accept people get naked and do fun things?
That would be far more beneficial in the long run.
You got naked and had sex, own up, move on.
We live in a sex-obsessed culture.
Part of what gives sex value is the difficulty in obtaining it.
Part of a person's value is the right to have sex with that person, which is given only at some cost.
Part of the value of sex with this person is the rarity of it. Few have had sex with this person.
Nudity and naked pictures are a part of the sexual process and its value. Only those who have sex with this person can see this person naked.
This person gave the right to have sex with her to one person.
Now everyone can engage in the seeing-naked part of the sexual process with her. This part is no longer rare.
Others will assume that she's a trollop, greatly depreciating her sexual value since it is commonly available.
Embarrassment is knowledge of others' diminished opinions of one.
-> Embarrassment
Social games are social games. An exploit has been patched.
Re:How about (Score:4, Interesting)
It's nice to see some politicians passing a law that may actually help a few people...
Re:How about (Score:5, Interesting)
It's the difference between hearsay ("Susan told me Tom was in town") and testimony ("I saw Tom in town").
Also known as, "pics or it didn't happen".
And when it comes to pics on the internet, it can also be the difference between "I wouldn't want to see that" and "oh god no, I can't un-see that".
Re:How about (Score:4, Interesting)
And, yes, I realize that it may seem counter-intuitive to call it privacy, but the media was private to the relationship.
So was the naive decision (of the photographed person) to trust someone who should not have been trusted. If we agree that private things should remain private, there is no reason why this should be an exception.
Re:How about (Score:5, Interesting)
'Revenge porn' is nearly always copyright violation. Clearly the 'model' has not signed off on this usage, and in the case of 'sexting' in particular, the 'model' is usually the 'photographer' too and therefore has ALL publication and distribution rights to the image, not just the model rights.
Anyone publishing revenge porn or hosting revenge porn sites is operating on the same level of self delusion as kazaa had when it asserted it 'presumes its users had the rights to the files being shared' while at the same time advertising you could get all the top hits for free.
Same thing here, they disclaim that the photo submitters have the rights to submit these photos while at the same time promoting the ability to get revenge on your ex by publishing the pictures she sexted you... literally inducing copyright infringment by definition.
If anything these website operators deserve to be shut down more than Kazaa did because these guys are are actually hosting/distributing the content.
I've made the same point (and I'm an IP attorney, so yes, you're right regarding the copyright ownership), but there's a counterpoint: these photos are not intended for distribution or sale, and so the actual damages for illegally distributing them is going to be (a) negligible, and (b) nigh-impossible to prove.
"But wait," you say. "What about statutory damages of up to $150,000 for willful infringement? Surely, that's a better fit here (and a more apt punishment) than the Jammie Thomas or Joel Tenenbaum RIAA cases!"
And you're absolutely right... except that to get statutory damages, you have to register your copyright.
By sending a copy to the Library of Congress.
Where it is publicly archived and available.
Your intimate sex picture.
That you're suing over because you don't want it publicly available.
Dang.
Nonetheless, once it's published on a revenge-porn site, the damage has already been done, so someone wise could quickly register their copyright (you have 3 months from first publication) and then (a) file a DMCA takedown to get it removed, with huge penalties if they don't, and (b) file suit for statutory damages for willful infringement against the ex who stole it.
Re:How about (Score:5, Interesting)
That's funny, since I'm an IP attorney, and I would never let anyone get away with the statement that "'revenge porn' is nearly always [a] copyright violation." The photographer or videographer will frequently be the partner rather than the subject, in which case a civil suit for copyright infringement is going to go exactly nowhere.
To be clear: (1) The copyright is held by the photographer; (2) The copyright in the photograph cannot be assigned except through a written instrument; and (3) in these situations the court typically cannot order such a transfer. 17 USC 201(e). If you didn't set up the camera or take the photo yourself, there is very little chance that you will be able to use copyright law to address the problem.
And never forget the ultimate problem -- anything posted on the internet will remain on the internet (through some service and at some location) essentially forever.