25 August 2013


'Exposed' by Derek Bambauer in (2014) 98 Minnesota Law Review argues
The production of intimate media – amateur, sexually explicit photos and videos – by consenting partners creates social value that warrants increased copyright protection. The unauthorized distribution of these media, such as via revenge porn, threatens to chill their output. To date, scholarly attention to this problem has focused overwhelmingly on privacy and criminal law as responses, neglecting the power of intellectual property doctrine to curtail harms and spur beneficial uses. Copyright law leverages an established, carefully limited system of intermediary liability that addresses the true risks of abuses, such as revenge porn. Importantly, copyright is also consonant with key statutory protections, such as Section 230 of the Communications Decency Act, that protect the thriving Internet ecosystem.
This Article proposes creating within the Copyright Act a right for identifiable people captured in intimate media to block unauthorized distribution and display of those images or video. It then uses the proposal, and issues for intimate media more broadly, as a window into contentious scholarly debates over the nature of authorship and the balance between copyright and free speech. The Article closes by identifying the rise of intimate media and its concomitant challenges as part of the ongoing revolution in information production.
Bambauer comments that -
Privacy law dominates discussions around the production and misuse of intimate media. Intuitively, privacy doctrine has considerable appeal: there is something sordid and voyeuristic about the unauthorized viewing of people captured in intimate, vulnerable moments. However, privacy-based approaches share common failings, one theoretical and two practical.
The theoretical failing of privacy law’s framework is that it does not take seriously the benefits of intimate media. Privacy, on this issue, is entirely about preventing harm to victims of unauthorized sharing. That impulse is admirable, but it ignores another valuable consideration: structuring a legal regime to encourage the production and sharing of intimate media among consenting partners. The virtue of this Article’s approach is that it addresses both: it creates a generative regime for intimate media, while reducing harm by punishing it as copyright infringement. And, copyright law operates in practice like a privacy regime more often than either privacy or IP scholars might like to admit. Howard Hughes bought the copyright of a critical biography so that he might suppress it. J.D. Salinger used copyright to quash quotations from his papers. Hulk Hogan sued to stifle his sex tape. In some contexts, copyright law can replace privacy law. It should do so here, since it addresses both the virtues and demerits of intimate media.
The first practical hurdle for privacy doctrine is the immunity conferred by Section 230 on intermediaries. While the initial revelation of intimate media likely causes some harm, the greater harm comes from the public availability and ongoing sharing of these media. Privacy laws, with the important exception of federal criminal ones, do not apply secondarily to Web sites, search engines, or other intermediaries. Privacy scholars typically respond by seeking to circumvent Section 230, or by seeking to change it. Circumvention exists, but is rare. While there are cases successfully bypassing immunity based on privacy claims – typically, on the theory developed by the Ninth Circuit that the Web site has contributed to the development of the content – they are the exceptions that prove the rule. Alteration or repeal of Section 230 is a hardy perennial of privacy scholars and of state legislators. Thus far, efforts to alter the 230 safe harbor have proved politically non-viable, and if successful, would clearly come at some costs to intermediaries and innovation. Section 230 is a barrier, but it is one worth keeping.
The second practical failing is that, even if Section 230 were modified, privacy law may not be able to hold intermediaries liable for nonconsensual distribution of intimate media without running afoul of the First Amendment. The First Amendment generally protects expression against government efforts to ban re-distribution of it, unless that expression falls outside the category of “speech.” For example, a radio station that broadcasts an illegally wiretapped conversation may not be held liable, even though the person who initially taped the content could be prosecuted, and even when the radio station knew the taping was unlawful. A newspaper that publishes the name of a minor who was raped cannot be subject to damages under a shield law forbidding publication of the identities of victims of sexual offenses. A media outlet that identifies, in contravention of the law, a minor charged with murder cannot be prosecuted. The trend line is clear: those who disclose initially can be held liable, but intermediaries who re-publish cannot. This is a significant – if not insurmountable – hurdle for privacy law to overcome. While appealing at first blush, privacy law not only faces doctrinal challenges to achieving its ends, but those ends are insufficient: they fail to take account of the benefits of consensual sharing of intimate media.
Bambauer concludes 
Blame smartphones.
Whether Apple, Android, or Windows, smartphones today share two key traits: they have cameras, and they are networked. These characteristics explain the rise of amateur-generated intimate media, and of its non-consensual distribution. The costs of production and distribution of this type of information – as with everything digital – have plummeted. Creating an explicit photo can be done easily, impulsively. And the device that snaps the photo can share it as well. The cost of distributing analog photos was an effective barrier to most non-consensual sharing; it was simply too much work. Even digital cameras required a USB cable, a computer, and a separate Internet connection before media could be distributed via the Internet. But, as sexting proves, the smartphone has made intimate media ubiquitous.
Yet this Article comes to praise this change, not to bury it. Intimate media generate significant, important benefits for partners who use such images and video consensually. Recognizing that value is the key insight into why intellectual property law is best suited to tackle the challenges raised by non-consensual distribution. Creating a right for identifiable subjects of intimate media to block unconsented sharing and display effectively curbs infringement, empowers people, creates incentives for production, and avoids disturbing both the First Amendment and settled Internet law. Ultimately, this Article’s reform to copyright law enhances autonomy and generativity – it enables us to meaningfully choose to whom we are exposed.