Honey, I’m going to copyright our amateur porn just in case we break up

Certainly there is a serious side to revenge porn but that’s not what this post is about. This post is a light-hearted riff on the notion of amending the Copyright Act to protect  amateur porn’s (aka “intimate media”) social value by “creat[ing] a right for identifiable subjects of intimate media to prevent unauthorized distribution or display of those images or videos, backed by statutory damages and injunctive relief, but leavened with immunity for service providers following a take-down procedure and for any defendant obtaining written consent or making newsworthy use of the media”. Quoting Derek Bambauer’s INFO/LAW post, Copyright, Sexting, and Revenge Porn: What Law Should Do, about his forthcoming Minnesota Law Review article. Here’s the abstract for Bambauer’s Exposed [SSRN]:

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.

Imagine the soul-searching deliberations leading up to bedroom conversations, see for example, I post amateur porn secretly on Salon. Imagine congressional deliberations. Imagine Fox News interviewing Scalia after SCOTUS opines on such an amendment. Heck, imagine Scalia’s law clerks researching revenge porn’s chilling effect on intimate media’s social value. Hell, imagine Jason Wilson’s annotations to the oral arguments before SCOTUS.

For the serious side of revenge porn, see Victims are taking on ‘revenge porn’ websites for posting photos they didn’t consent to (ABAJ, Nov. 1, 2013). See also, Miami Law prof Mary Anne Franks’ blog, Moving Targets, and the work she is performing to draft model legislation to criminalize revenue porn.  — Joe

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