Josie Croce, Contributing Member 2023-2024
Editor-in-Chief 2024-2025
Intellectual Property and Computer Law Journal
I. Introduction
Nonconsensual pornography (‘NCP’), also referred to as revenge porn, is the term used for sexually explicit images that are stolen, distributed, or posted online without the consent of the person depicted in the image.[1] Instances of celebrities’ NCP being posted to the internet have received wide media coverage, and it is quite a common experience: 1 in 12 Americans have been a victim of NCP.[2] Victims report experiencing serious social, emotional, and occupational effects of NCP, as they received both online and in-person harassment.[3][4]
The motivation for harassers to post NCP varies widely, but many are motivated to seek revenge by humiliating or harming the person depicted in the photo.[5] Accordingly, NCP thrives online and with an audience, as certain websites permit harassers to post intimate photos, descriptions of the photos, and personal information about the victim.[6] In a small-scale analysis of 134 photographs from 7 U.S. websites, when a reason was given as to why the NCP was posted, it was correlated to a greater likelihood of including the victim’s name, to a greater likelihood that viewers were allowed to comment on the photos, and to a greater number of views.[7] Although NCP and the accompanying personal information circulates on innumerous sites, there are some websites that are created for the purpose of sharing NCP. Most infamously, in 2010 the NCP site IsAnyoneUp.com attracted (allegedly) over 30 million monthly views and up to $20,000 per month in advertising revenues before the site was taken down in 2012 and the creator was indicted in 2014 on federal charges of conspiracy and hacking.[8][9]
NCP is criminalized in 48 states and the District of Columbia, and some victims also use tort law as a means to seek justice.[10] Still, some advocate for another legal route for victims to seek justice: intellectual property law. The Copyright Act (the ‘Act’) can protect images that someone takes of themselves and may be used by NCP victims to claim infringement against harassers. Complicating this issue are the provisions to the Act that shield social media platforms (a prime location for NCP) from liability if they grant users’ requests to take down infringing material as well as the social media platforms’ policies to prevent NCP.
Impacts of Nonconsensual Pornography
NCP can have varying impacts on a victim, especially considering the variations in the nature of the harassment. This includes factors such as the website where the NCP is posted, the relationship to the harasser, the number of harassers, and the duration or frequency of the harassing conduct.[11] Still, the emotional, professional, and social effects on victims are widespread and serious.
In a small study of 361 people who were victims of NCP, 93% reported significant emotional distress due to being a victim.[12] 51% have had suicidal thoughts due to being a victim.[13] Further, 82% said they suffered negative effects on their “social, occupational, and other important areas of functioning.”[14]
Regarding the social effects, 34% say that being a victim of NCP has injured their relationships with family and 38% say that it has injured their relationships with friends.[15] Further, 37% report being teased due to being a victim.[16]
Regarding the occupational effects, 54% of victims experienced difficulty focusing on work or at school.[17] For many, they fear that their professional reputation may be tarnished well into the future or that their professional advancement will be impacted.[18] These fears are justified by serious repercussions, with 6% of victims being fired from their job or kicked out of school, 13% of victims having difficulty getting a job or getting into school, and 39% of victims reporting that this has affected their professional advancement with regard to networking.[19]
Victims of NCP face harassment both online and offline. 49% of NCP victims report harassment or stalking online by people who have seen their material.[20] Further, 30% of victims report harassment outside of the Internet (either in person or over the phone) by people who have seen their material.[21]
Relevant Copyright Act Provisions and Company Policies
17 U.S.C. § 102, 201, & 106
Copyright protection extends to “original works of authorship fixed in any tangible medium of expression,” including “pictorial works” (such as a photograph).[22] The ownership of copyright in the work vests in the author of the work, and the owner of copyright has the exclusive right to reproduce the work, distribute the work to the public, and display the work publicly.[23].
Digital Millennium Copyright Act (17 U.S.C. § 512)
In 1998, Congress passed the Digital Millennium Copyright Act (DMCA), including section 512 which “shields online service providers from monetary liability and limits other forms of liability for copyright infringement—referred to as safe harbors—in exchange for cooperating with copyright owners to expeditiously remove infringing content if the online service providers meet certain conditions.”[24]
In essence, users of online service providers (which includes social media sites) can notify the provider of alleged infringement via “written communication” to the provider. The notification of alleged infringement should include: (1) a signature of a person authorized to act on behalf of the owner of the exclusive copyright that is being infringed [including the owner themselves]; (2) identification of the copyrighted work claimed to have been infringed; (3) identification of the material that is claimed to be infringing; (4) information to permit the service provider to contact the complaining party; (5) “a statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”; and (6) a statement that the information in the notification is accurate. [25]
In response to obtaining notification of the claimed infringement, the service provider must “respond expeditiously to remove or disable access to the material that is claimed to be infringing,” in order to be shielded from liability.[26]
Using Company Policy
Some social media platforms have policies that prohibit NCP. Facebook, Instagram, Reddit, Tumblr, X (formerly Twitter), and Yahoo prohibit NCP, and Google and Microsoft allow users to report NCP so that they may remove links to pages where NCP has been posted.[27]
Copyright Law as a Potential Cure
It is estimated that about 80% of NCP images are photographed by the victim, which means that the victim is the author of the work for copyright purposes.[28] Under the Act, ownership vests in the author upon “fixation” (i.e. once the photograph is taken) and all of the rights associated with copyright (i.e. the right to reproduce, distribute, and display) attach instantaneously.[29] Accordingly, the Act—through DMCA takedown notices and infringement suits—can provide protection in circumstances when criminal or tort law cannot.
Constraints of Criminal and Tort Law
Although over 48 states and Washington D.C. have criminalized NCP, there are numerous limitations on victims’ ability to achieve justice through the criminal justice system.[30] Often, victims are dismissed by law enforcement who are unsympathetic to the victims because they appeared in the images in the first place.[31]
Further, the statutes criminalizing NCP vary by jurisdiction, placing various limits on the ability of a victim to receive justice. First, a prosecutor may have no jurisdiction to bring charges against a harasser who is located in a different state (or country) than the victim.[32] Additionally, the statutory definitions of what constitutes NCP may leave certain victims unprotected. For example, some states like California require the prosecutor to prove both that the defendant intended to cause the victim serious emotional distress and that the victim actually suffered serious emotional distress.[33] Other states like North Dakota define “intimate image” to include “exposed human male or female genitals or pubic area, with less than opaque covering [and] a female breast with less than an opaque covering, or any portion of the female breast below the top of the areola,” leaving victims whose images do not fit within this description unshielded from the law.[34]
Tort law provides additional remedies for victims, allowing them to recover punitive damages from harassers through claims like intentional infliction of emotional distress and public disclosure of private facts.[35] Still, some limitations remain. On October 1, 2022, Congress’ federal civil cause of action against NCP took effect allowing a plaintiff to receive monetary damages and enjoin the harasser from further disclosing the image. However, the protection provided by this statute may not apply to nonconsensual images captured by the victim/depicted person, because the image was not “created” by the defendant.[36]
DMCA Notices to Takedown Revenge Porn
DMCA takedown requests are a useful avenue for victims to request sites to remove their images. By following the 6 requirements in the statute, victims can get their images removed without hiring a lawyer or registering their copyrights.[37]
However, takedown requests are only so effective when it comes to websites that are dedicated to hosting and promoting NCP by allowing users to upload content (referred to as ‘tube sites’).[38] Tube sites often have difficulties complying with takedown requests due to the high rates of infringing content being posted. Further, some tube sites have been accused of uploading the infringing content themselves and claiming that it was posted by their users.[39]
Infringement Claims and Monetary Damages
The Act permits victims who register their copyright a file a lawsuit to seek up to $150,000 in statutory damages for each instance of willful infringement (i.e. each posting of NCP).[40] Further, even if the infringer proves that they were “not aware and had no reason to believe that his or her acts constituted infringement of copyright,” the court may still award statutory damages of a minimum of $200.[41]
Departing from criminal and tort law, victims asserting their copyrights need not rely on the help (or lack thereof) of law enforcement nor the prosecutors’ ability to prove the harmful intent and negative impact of the posting of NCP. As explained by Professor Andrew Gilden, intellectual property rights can be an empowering method for victims to take authority over their images: “Individuals asserting IP rights in order to stop the spread of sexual imagery need not garner the sympathy of law enforcement and can instead make enforcement decisions themselves while fully immersed in the norms of the community in which the asserted harms are occurring.”[42]
Some victims bring copyright and tort claims together, as their lawyers navigate the complexities of state and federal law surrounding NCP and seek to maximize the chance of recovery.[43] In 2018, a woman from California received a $6.45 million judgment—one of the largest awards in an NCP case—against her former boyfriend: $3 million was awarded for severe emotional distress, $3 million for other damages, and $450,000 for copyright infringement. [44]
Conclusion
NCP posted and shared on the internet has wide-ranging emotional, occupational, and social harms on victims. Social media sites as well as NCP sites create platforms for these intimate images, alongside personal information of the victims, to be spread by harassers and viewed by the public. Although some sites’ company policies permit victims to request their images be taken down, the DMCA provides another route and encourages sites to be vigilant about taking down infringing content. However, for many victims, the harm has already been inflicted once the image is posted. As a remedy, criminal law can serve to punish harassers and tort law can serve to provide victims with compensation. For the victims who initially took the intimate image themselves, copyright law provides an avenue to recover monetarily from their harassers while also easing the burden of proof compared to what is required in criminal or tort law. Although the steps required for filing a copyright suit may be burdensome (registering a copyright and retaining a lawyer to file suit), the potential to receive statutory damages and take control over one’s images may make the process worthwhile.
[1] Sen Nguyen, What is ‘revenge porn’ and are there laws to protect you? Here’s what you need to know, cnn, https://www.cnn.com/interactive/asequals/revenge-porn-protect-yourself-as-equals-intl-cmd/ (last visited Feb. 16, 2024).
[2] Cyber Civil Rights Initiative, Nonconsensual Pornography (NCP) Fast Facts, https://cybercivilrights.org (last visited Feb. 28, 2024).
[3] Dan Taube, Keely Kolmes, Colette Vogele, Without My Consent, Preliminary Report: Without My Consent Survey of Online Stalking, Harassment and Violations of Privacy, https://withoutmyconsent.org/perch/resources/wmcprelimsurveyreport.pdf (last visited Feb. 16, 2024).
[4] Cyber Civil Rights Initiative, Revenge Porn Statistics, http://www.endrevengeporn.org/main_2013/wp-content/uploads/2014/12/RPStatistics.pdf (last visited Feb 16, 2024).
[5] Caroline Uhl, Katlin Rhyner, Cheryl Terrance, Noël Lugo, An examination of nonconsensual pornography websites, 28 Feminism & Psychology 50 (2018).
[6] Cyber Civil Rights Initiative, Revenge Porn Statistics, http://www.endrevengeporn.org/main_2013/wp-content/uploads/2014/12/RPStatistics.pdf (last visited Feb 16, 2024). In a survey of 361 victims, many reported that other personal information was posted along with the nonconsensual pornography. 59% reported that their full name was posted, 26% reported that their email address was posted, 49% reported that their social media information was posted, 16% reported that their home address was reported, 20% reported that their phone number was posted, and 14% reported that their work address was posted.
[7] Caroline Uhl et. al, supra note 5
[8] Ella Sangster, Is Anyone Up?: Who is Hunter Moore, AKA The Most Hated Man On the Internet, Harper’s Bazaar, https://harpersbazaar.com.au/hunter-moore-is-anyone-up/ (last visited Feb 16, 2024).
[9] Dave Lee, ‘Revenge porn’ website IsAnyoneUp.com closed by owner, BBC News (Apr. 20, 2012), https://www.bbc.com/news/technology-17784229.
[10] Chance Carter, An Update on the Legal Landscape of Revenge Porn, National Association of Attorneys General (Nov. 16, 2021), https://www.naag.org/attorney-general-journal/an-update-on-the-legal-landscape-of-revenge-porn/.
[11] Dan Taube et. al, supra note 3.
[12] Cyber Civil Rights Initiative, Revenge Porn Statistics, supra note 4.
[13] Id.
[14] Id.
[15] Id.
[16] Id.
[17] Id.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] 17 U.S.C. § 102(a). A photograph may be eligible for copyright protection so long as it meets the constitutional minimum standard of originality.
[23] 17 U.S.C. § 201, 17 U.S.C. § 106.
[24] Copyright.gov, The Digital Millennium Copyright Act, https://www.copyright.gov/dmca/#:~:text=In%201998%2C%20Congress%20passed%20the,between%20copyright%20and%20the%20internet (last visited Feb 16, 2024).
[25] 17 U.S.C. § 512(c)(3)(A)
[26] 17 U.S.C. § 512(d)(3)
[27] Cyber Civil Rights Initiative, End Revenge Porn Online Removal Guide, http://perma.cc/7RQ6-LJZL (last visited Feb. 16, 2024).
[28] Heather Kelly, New California ‘Revenge Porn’ Law May Miss Some Victims, CNN (Oct. 3, 2013), http://www.cnn.com/2013/10/03/tech/web/revenge-porn-law- california/.
[29] 17 U.S.C. § 102(a), 17 U.S.C. § 201, 17 U.S.C. § 106
[30] Chance Carter, supra note 10.
[31] Andrew Gilden, Sex, Death, and Intellectual Property, 32 Harv. J.L.& Tech. 67 (2018).
[32] Sen Nguyen, supra note 1.
[33] Cal. Penal Code § 647 (2013)
[34] N.D. Cent. Code § 12.1-17-07.2 (2015).
[35] Lindsay Holcomb, The Role of Torts in the Fight Against Non-Consensual Pornography, 27 Cardozo Women’s L.J. (2020).
[36] Congressional Research Service, Federal Civil Action for Disclosure of Intimate Images: Free Speech Considerations (Apr. 1, 2022), https://crsreports.congress.gov/product/pdf/LSB/LSB10723. The Congressional Research Service’s Legal Sidebar explains, “In practice, the circumstances in which a plaintiff could show that a provider or user created or developed the nonconsensual pornography at issue could be fairly narrow. By some estimates, a large percentage of nonconsensual pornography images are ‘selfies’—that is, images captured by the depicted person—and thus may not have been “created” by the defendant. Additionally, in some jurisdictions, a court may not consider a provider or user to have ‘developed’ the content at issue unless the provider or user ‘directly and materially contributed to what made the content itself unlawful.’ [However,] websites that actively encourage the posting of nonconsensual pornography might be content creators under this test.”
[37] 17 U.S.C. § 512(c)(3)(A).
[38] Jim Edwards, The Porn Industry Is Being Ripped Apart By Piracy-Fueled ‘Tube’ Websites, Business Insider (Jul. 19, 2024, 8:52 PM), https://www.businessinsider.com/the-porn-industry-is-being-ripped-apart-by-tube-site-litigation-2012-7.
[39] Id.
[40] 17 U.S.C. §504(c)(2). Copyright.gov, Frequently Asked Questions: Copyright in General, https://www.copyright.gov/help/faq/faq-general.html#:~:text=In%20general%2C%20registration%20is%20voluntary,%2C%20section%20%E2%80%9CCopyright%20Registration.%E2%80%9D (last visited Feb. 16, 2024).
[41] 17 U.S.C. §504(c)(2).
[42] Andrew Gilden, supra note 24.
[43] Christine Hauser, $6.4 Million Judgment in Revenge Porn Case Is Among Largest Ever, The New York Times (Apr. 11, 2018),https://www.nytimes.com/2018/04/11/us/revenge-porn-california.html.
[44] Id.
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