Copyright Law and the Fight Against Revenge Porn: Q&A With David Bateman of the Cyber Civil Rights Legal Project

by JD Supra Perspectives
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When you live in a world where CDA 230 gives hosting companies immunity, you have to use the tools that are available to you, and copyright law just happens to be the best in our toolbox...

We recently spoke on the phone with attorney David A. Bateman, a Seattle-based partner at law firm K&L Gates with a long background in intellectual property, technology, and Internet law, to learn more about the work being done by the firm's Cyber Civil Rights Legal Project, which Bateman co-founded last year with Elisa J. D'Amico of K&L Gates' Miami office.

In late January The New York Times published a profile of the Cyber Civil Rights Legal Project and the pro bono efforts of 50 K&L Gates attorneys to help victims of revenge porn. We wanted to learn more about the project and, specifically, the strategy of using copyright law to fight such cases:

Q: To start, how did the Cyber Civil Rights Legal Project come into being?

Bateman: My background is in Internet law. For years I have worked with tech companies to do civil litigation and enforcement, whether it's piracy or privacy or cybersquatting.  Our Seattle office has really developed a great deal of cyber forensic experience.

Coincidentally, one of my colleagues in the Miami office [Elisa J. D'Amico] was working with a local group of women's lawyers and a prominent Miami law school professor, Mary Anne Franks, e advocating for the passage of a revenge porn statute in Florida. She came to realize that lawyers for revenge porn victims often didn't have the necessary cyber forensic expertise -- and that we had those capabilities in Seattle, but had never applied it to revenge porn. She convinced us to try it out. The combination worked out really well, with Elisa’s knowledge in the field and as a victim's advocate, and our Seattle team doing the cyber forensics.

We pitched that to the firm as a pro bono project, and it was received enthusiastically. We have 50 lawyers in the firm who have volunteered to do work on the project.

We launched in the fourth quarter of last year; it has been only four months now. We built a website for victims to contact us and obtain information. I am incredibly surprised at the volume of referrals and requests we've gotten. It's just overwhelming. It's eye-opening. Revenge porn is not something that I knew that much about before ... but when you get into it, it's unbelievable.

Q: What types of cases are you seeing?

When a victim contacts us, their goals fall into three categories. Almost always, their main goal is to get their photos offline. And that is no small task in and of itself. The second thing they often want to do is start a civil lawsuit and try to get their ex- (or whoever posted the photos) to be held responsible. And some are looking to see the people involved arrested and to get law enforcement involved. So these are the three buckets that we're usually helping people with.

…this is not just about pictures; it's online harassment.

Although many victims need counseling, that’s not our area of expertise and we refer victims to other support organizations.  But we always recognize that revenge porn is usually a symptom of a broader problem; it's not happening in isolation. It is an act in a tableau of bigger relationship issues, bigger emotional issues. Often it's only one type of harassment that the victims are experiencing. And usually, when the bad actor lashes out, "revenge porn," as we call it, is only one vehicle; sometimes it'll be coupled with harassing phone calls, with stalking, sometimes with blackmail, pressuring the victim with threats to release intimate photos.  So, for counseling and support, our team works with some of these organizations, such as CCRI (Cyber Civil Rights Initiative) and a group called End Revenge Porn, both of which have counseling and outreach and help victims in other ways that we aren't able to.

Q: Can you describe the nuts and bolts of the legal strategy and the tools that the Cyber Civil Rights Legal Project is using?

Let's start with the world of online take-down. There are dozens of websites that specialize in revenge porn, expressly dedicated to the posting of images of ex-girlfriends or ex-boyfriends.  Each of those websites is a commercial enterprise; it makes money with advertising. It's focused on this particular type of photography.

But we begin our legal analysis with remembering that the CDA [Communications Decency Act Section 230], a foundation of all Internet law, provides that website operators are generally immune from liability for user-generated content. And that's why these sites can exist. The legal concept is that, as long as you run these sites as an agnostic hosting company, you are entitled to CDA 230 immunity.

If you have postings that are defamatory or unfair or unseemly but have nothing to do with intellectual property, the website operator has no liability for them and can ignore any requests to take them down.

The exception to CDA 230 immunity is intellectual property law. If you have postings that are defamatory or unfair or unseemly but have nothing to do with intellectual property, the website operator has no liability for them and can ignore any requests to take them down. A classic example of that would be craigslist. There was a series of cases where state officials were trying to hold craigslist liable for sex trafficking because of personal ads that were on the site. In every case, federal judges ruled very clearly that the site was protected by CDA 230 immunity. You may not like the content of these sites, but if it was generated by a user, this federal law says the websites are immune.

The exception to CDA 230 immunity arises from intellectual property law. Thus, people who want to get things removed from websites often rely on intellectual property law and, in particular, on the DMCA, the Digital Millennium Copyright Act. The DMCA has been used forever by record companies and movie studios to get copyright-infringing content taken down from websites. And that's how most victims of revenge porn get their pictures taken down: by sending DMCA notices to the websites. Now, that works only if you have copyrights in the images that have been posted. And under the federal copyright law, the person who takes a “selfie” is the photographer and therefore has copyrights in those images, whereas a person who is simply a model or the subject of the photograph, and is not the photographer, does not.

The exception to CDA 230 immunity arises from intellectual property law.

In our representation of victims, we sometimes contact the photographer and ask them to assign the copyrights to the victim. My experience is that many times the photographer, when contacted by a law firm, is willing to be cooperative and contrite. These postings often occur in the heat of the moment and, upon reflection, the poster is willing to be more helpful. In other cases, the photographer is not the person who has posted them, or claims not to be. Some make assertions such as "my computer was hacked, or someone broke into my account somewhere or I lost my phone. ..." If they maintain their innocence, they are much more likely to execute a copyright assignment.

Q: How often does that happen? Do some of these cases go away pretty quickly when they're contacted by a firm talking about copyright?

Getting the copyright assignment from the ex- is much more likely to occur than you would guess -- maybe half the time we can get that copyright assignment. But whether you had copyrights in the original photos or obtained those rights by assignment, the question then becomes: How successful can you be taking these images offline? The DMCA requires people to remove infringing images, but that is effective only if the website is subject to U.S. law and only if they're actually following the law. It is no simple task to clean the Internet of these images -- even if you have the legal right. We always need to make a distinction between having the right to take them down and being effective in getting them offline -- and that's especially true when the photos or videos have gone viral, and they've been posted to hundreds of different sites.  In that case, you have to invest the effort of going site by site, link by link, to do this Internet hygiene. We have a dedicated “DMCA team” of three lawyers who spend all their time simply working on the take-down process. This is not the litigation; rather, they capture the evidence and preserve it so that we can use it later, and contact the sites where the copyrighted images are posted and try to get them taken down.

So that's how copyright law oddly plays into it. Copyright law wasn't designed for revenge porn; it just happens to be the effective mechanism. When you live in a world where CDA 230 gives hosting companies immunity, you have to use the tools that are available to you, and copyright law just happens to be the best in our toolbox.

Copyright law wasn't designed for revenge porn; it just happens to be the effective mechanism.

Of course, there are ways sites can destroy their immunity under CDA 230, and that is now being litigated in the revenge porn context. In fact, you'll see that, a few days ago, the California attorney general obtained a criminal conviction against the operator of the website YouGotPosted. And the reason they were able to do that is that the web site owner there was more than an agnostic host for third-party content; he did things beyond simply being a passive bulletin board for the posting of these images. The FTC had another victory against a different site operator. The claims against some of these website operators can be based on identity theft, extortion, or other criminal behavior.

Q: Now, you're restricting yourselves to civil cases?

That's right. We will, many times, help clients organize their evidentiary material and help them contact and work with law enforcement, but the decision about prosecuting and going forward with a criminal case is not ours.

Q: This appears to be a rapidly evolving area right now, with the San Diego trial, the FTC getting involved, and a number of states that are taking this on, while others are saying they don't want to touch it. I'm curious as to how you deal with the issue as events accelerate.

It's a particularly interesting time. It's another of those instances where we're learning about the consequences of using technology in ways that seem to be appropriate. Look, there is nothing wrong with sharing intimate photos in a relationship; that has happened for centuries. But the new technology makes it much more rampant and preservable and distributable. In the old days, if you had a long-distance relationship and shared a Polaroid by mail, when the relationship was over, that probably didn't go anywhere. Now, you have a camera at your disposal 24/7, the sharing of images has become very customary, they get preserved for eternity, and it takes only a moment to upload them to a distribution platform that lets the whole world see them. It's not a different issue; it's a different time of technology.

My sense is, for the last four or five or six years, people have been having this problem, and no one recognized it as a problem. There's been a lot of work by industry, by advocacy groups, by government and law enforcement to publicize it, and that's why we're hearing so much more about it. We're seeing it in the news because there's now a lot of enforcement around it, not because it's just starting to happen. So, yes, it is an evolving practice area, but no different than most areas of technology when they intersect the law. This is what Internet lawyers have been doing since the beginning of the Internet, looking at how human behavior that happens in the brick-and-mortar world translates to the Internet, and how the legal world can address it. And you're correct, with the new focus on it, there is a lot more energy being put into specific statutes dealing with cyber exploitation, instead of using the traditional common-law claims that are used in civil litigation.

 It's not a different issue; it's a different time of technology.

If we have a client who wants to go beyond take-down and wants to move into filing a civil lawsuit, we have a couple considerations. First, it's somewhat ironic that, to get relief for this invasion of privacy, our client has to file a public complaint. This could be one of the worst moments in their life, and they need no more publicity about it, but yet they have to go out publicly, file a lawsuit and have it picked up in the news. That can be a problem, but we can overcome that by filing pseudonymously, which is permitted in many states. The next question is: Do you know who the defendant is? In many cases, the victim knows, because the ex- has confessed to the postings. In some cases, the victim may have a strong suspicion because that's the only person they shared the photos with.  But in others, as I mentioned before, the ex- may claim that their computer was hacked or that they didn't distribute these photos -- and that might even be true. If we don’t have relative certainty about the identity of the defendant, we file what we call John Doe lawsuits -- a common practice in Internet law -- and you then follow the forensic path to try to unmask the proper defendant.

Q: It seems like you see that a lot in file-sharing cases.

Exactly. A copyright owner knows that someone has infringed their intellectual property; they have some IP addresses but they need to file a case and use subpoena power to unmask the defendants. We need to do that in some of our cases. We file against the John Doe and we subpoena the forensic evidence before naming the defendant. A very quick unmasking may take two months -- and sometimes, it takes many more months.

Although there's a lot of focus these days on enacting particular statutes that provide a civil cause of action for revenge porn, in my view, there has always been tort law that covers this type of behavior in every state. There are tort claims for intentional infliction of emotional distress, outrage, invasion of privacy, the publication of private facts -- each state has different tort law, but at its heart, there always seem to be claims that fit very well for this type of behavior.

Another legal avenue is to file a copyright lawsuit. If you take a photo, you have innate copyrights in it, but you can't sue on those rights unless you first register with the Copyright Office. So sometimes we help our clients register their copyrights so they get added protection for the images and can sue in federal court.

This is what Internet lawyers have been doing since the beginning of the Internet, looking at how human behavior that happens in the brick-and-mortar world translates to the Internet, and how the legal world can address it.

Q: Is there a preferred avenue? Is that the recommended course, if they have it, to get the copyright protection and go to federal court?

I think that's very much a judgment call on the part of the lawyer who is handling the case. My view is that a federal copyright lawsuit is not particularly necessary because the state law claims are strong and available. And again, there's some irony there, that to bring a case based on the disclosure of private facts, you have to publicly file for a copyright registration for these images.

Q: Are some people not willing to do that for obvious reasons? Are they advised to take a different path in that case?

Many people are startled to even hear about that recommendation. It seems bizarre to them. But there are mechanisms for doing it where the information can be kept fairly private. There are techniques for doing a copyright registration that do not require the actual publication of these photos again.

Q: Are you getting cases from pretty much all over the country?

We have lawyers on three continents now in our project; we have folks in the EU, Australia, and the U.S. Most of our contacts come from the U.S. It is a fairly random sampling. Not surprisingly, the more populous states are represented proportionally. The one outlier is California; I'd say 40 percent of our U.S. referrals are residents of California. I don't attribute that to the natural fact that everyone in California is more beautiful or likely to be taking photos of themselves because they're so hip. I think it's because the law enforcement and public officials in California, and the media in California, have done a very good job of publicizing this issue, and therefore victims in California are more likely to know that they're victims and more likely to look for help.

Q: I assume all your cases, or at least the ones you handle, are with adults?

We do get contacted by minors, and we very quickly steer them to law enforcement. We help them get to the right resources -- and yes, we've had incidents where law enforcement reacted quickly and they are going out and arresting people.

Q: How unusual is it that you all are doing this work? There seems to be a certain amount of push-back in some quarters about pursuing these cases, partly because of First Amendment concerns. Is it unusual for law firms to be taking up this issue?

I think you're correct in that we have found a niche where there was a very large segment of the population who just did not have access to legal resources. Without free legal services, a victim must have a significant amount of money to obtain a lawyer, whether it's 10 thousand or 20 thousand or 30 thousand dollars. It's a big barrier for people to get legal representation. I think what we've done is lower that barrier by providing pro bono representation.  We're not inventing the law. We're putting resources toward it. And that’s consistent with our firm's pro bono mission.

We're not inventing the law. We're putting resources toward it.

Our firm has many pro bono initiatives; we work in every local region with pro bono groups. This project, though, happens to resonate among many of our young lawyers.  I think the young lawyers recognize it for the problem that it is, and that's why we've had such an overwhelming turnout and people are willing to dedicate their time to this.

Q: You have 50 lawyers in the project as a whole, is that right?

All from our firm. We have three teams; one is a team of intake lawyers who work directly with the victims, learn and distill their problems, and  try to figure out how best to solve them. Another team is the cyber forensic folks who do the DMCA take-downs and the electronic tracing; they are our technology backbone. And then we have a large group of litigation lawyers who will take on the civil cases in their local area and run them. It's really turned into a practice group of its own. We get probably 50 revenge porn referrals a month these days.

Q: In what sense is this project a first?

There are many lawyers who have represented revenge porn victims for much longer than we have; we didn't invent this. There are wonderfully talented lawyers who've been out there fighting this fight for several years, developing the techniques, working on strategies, and they have helped educate us -- so we're standing on the shoulders of giants here. We're not inventing this all ourselves.

I think it's the first large law firm commitment to revenge porn on a pro bono basis. And we bring with us our cyberforensic capabilities. The normal course, as a victim, might be to go to a family lawyer -- they understand harassment, they just might not have the expertise in DMCA take-downs or tracing IP addresses. That cyberforensic talent, I think, is really helpful to rounding out the whole package.

Q: As you say, a lot of it is a natural progression from the other work you all have been doing on IP or Internet law.

That's right. This is a very natural fit. It almost doesn't matter what the subject matter is; you just use the standard legal and forensic tools, and we're lucky enough to be able to apply them in this situation where people really need the help.

Q: How do you see this area evolving over time? Given the increased attention being paid to revenge porn specifically and to cyberharassment in general, do you think there will be more roadblocks preventing people from committing these types of actions?

My hope is that the publicity that's being generated by enforcement actions now will have two deterrent effects: one is that it will make people think a little more carefully before they take that picture and send it to someone else. The other is that it will make someone think very carefully before they disclose that Internet picture online. And if you can deter the behavior, you're much better off than doing enforcement. I do think enforcement is going to continue, and I believe we'll see a resulting uptick in successful cases, and hopefully that will ultimately educate people. It's very important here to never blame the victim. The sharing of these types of photos happens all the time; we need to educate people about the consequences of it -- but the crime is not the taking of the picture; the crime is the distribution of it without someone's consent.

Q: Can you speak about the current status of the cases you're taking on?

Many people come to us and just want the material taken down. We do that very quickly and very efficiently, and our clients are happy. That is routinely the most common event. For the cases where we're actually litigating, they are all in various stages: We have civil cases that we have file and are progressing; we have clients who have active criminal cases and we're assisting in those; and we have stepped in to some civil cases that had been previously filed, and we are helping to add our cyberforensic team to those cases.
If you could find a way to fund it, you could have an infinite number of clients. I was at a conference recently and they said there an estimated 850,000 victims a year. I don't want to blow this out of proportion; we are not curing cancer, and this is certainly not the worst online exploitation in the world. We just happened to find that this is the right balance for our skills, and a vulnerable segment of the population that really doesn't have representation.

Q: Could you speak a little about the decision to form the project and how you get buy-in for that type of thing and resources, staff time and attorney time?

That's a great question. Our firm has a very long history of pro bono work and dedicating resources to pro bono projects. That being said, you can imagine the odd conversation that I had with our firm managing partner when I mentioned to him the term "revenge porn." Our managing partner, Pete Kalis, is a very forward-thinking fellow, and he understood quickly that this is really an issue of civil rights. And that's why we call it the Cyber Civil Rights Legal Project. It is fighting for people's right to control their own online images. And he realized that this resonates with a lot of the lawyers at the firm, and he gave us a green light to do it.
Although the term “revenge porn” is provocative and was probably new and startling to many of our partners when they first heard it, I think everyone understands the problem now. It’s just been remarkable and very comforting to get such broad support, not just from the firm but from the individual lawyers themselves; they're the ones who make the decision if they want to participate -- so you have the firm embracing it and all of these lawyers rising to the challenge, because they understand the problem.

I think it's the first large law firm commitment to revenge porn on a pro bono basis.

People get a little concerned about the word "revenge porn" … I don't like the term, and for this reason: This is not about pornography. These are intimate pictures that people are sharing that are sexual in nature or not sexual in nature. It's not pornography in any sense … but the fact is, the word "revenge porn" grabs your interest; it’s startling; it's sort of shocking. And if it grabs people's attention, I think we have to use it.

Most of this is not about the photos or videos alone.  It's not just "here's your picture"; it's accompanied by: "here's your picture, here's your name, here's your Facebook link, here's where you work, I'm sending a picture to your mother, and I'm posting it on a site to ask men to come visit." That's the usual combination. And it creates a situation where the top Google searches for a victim’s name come up with links to revenge porn sites.  It ruins victims’ employment opportunities and it can result in losing a job or dropping out of school.  So, talking about the images alone is a little too clinically isolated; this is usually a much bigger issue ... It's cyber-exploitation; this is not just about pictures; it's online harassment.

Q: From a layman's standpoint, that all sounds like something that should land a perpetrator in a boiling pot of legal trouble pretty fast, but obviously, it's not that cut-and-dried.

You know what I'd say? The perpetrators of this can only be brought to justice if there are enforcement resources who are able and interested to deal with it. A victim has a barrier to entry to get a civil lawyer because of the cost, knowing where to go to get a lawyer, and finding a lawyer experienced in revenge porn. That's on the civil side. On the criminal side, while we do have clients who are getting great responses from law enforcement, there are many others who tell us they went to the police, and they got no traction.

The perpetrators of this can only be brought to justice if there are enforcement resources who are able and interested to deal with it.

Some victims are frustrated to hear, "Eh, this is on the Internet, it’s not in our jurisdiction” or “honey, you shouldn't have taken those pictures." It’s an unfortunate fact that sometimes law enforcement are not sensitive to it, or they don't have the time to deal with it, or frankly they just have other priorities. So to your question of how do they get away with it ... I think a lot of it is a resources question.

Q: And that's where you all come in.

That's right. That's why we're there. I think we're the finger in the dike. There's a wall of water behind us, and we're throwing 50 lawyers at it, but there could be 50 thousand.

*

[This interview has been edited for length and clarity.]
 

 

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