To Sext Or Not To Sext: Exploring The Consequences And Remedies Of Digital Flirting

Written by Laura C. Budd
Contributing Editor: Amanda Klimczak
Managing Editor: Lindsay E. Landstrom

Please note: some of the hyperlinks in this essay lead to definitions that some readers may find offense. Therefore, please take appropriate caution when exploring the hyperlinks.

I. Didn’t I Go To High School With Her?

In recent years, websites touting “revenge porn” have become immensely popular. Revenge porn sites, such as the infamous (and now defunct) IsAnyOneUp.com, have been the target of numerous lawsuits and complaints from individuals whose photos find their way to the website’s creator. These websites differ from a traditional pornographic websites because most of the content is not self-submitted; rather, people other than the subject submit the pornographic images.  Often, the culprit is a jilted ex-lover/partner or other individual seeking to humiliate or expose the subject. The most common source of these types of images is a “sext” from one former lover to another. Revenge porn websites offer sexted images accompanied by a screen shot of the subject’s Facebook profile, which displayed his or her personal information for the entire Internet world to see.  Since Facebook profiles generally include a person’s city of residence, place of employment, school, and family members, the very detailed information that accompanies the image eases cyber-bullying of the victim.

The creator of IsAnyoneUp.com, Hunter Moore, claimed to receive over 10,000 images as submissions in as little time as three months. It was an immensely popular website with devoted followers. Fans created a Twitter page that featured uploaded pictures of the website’s ‘hash tag’ tattooed on their bodies. Fans even created a song on YouTube that has over 280,000 views to date. The site itself brought in roughly $13,000 a month, but that figure could have been higher if Moore had sought advertisers for the website. Moore alleged he paid approximately $8,000 in fees for the use of the server alone for the website, which severely limits the profits he obtained. Legally, he was able to do this under §230 of the Communications Decency Act, which protects site owners from legal liability of items provided by users.  In other words, even though Moore violated the legal rights of the subjects by posting the images, he arguably was not criminally liable because the website was user based.

Moore did take some legal precautions on his website.  When users submitted photographs, they were asked a series of questions regarding the legality of the photograph. Moore required users to agree that they are submitting legal images, and states that the site will not post “professional/copyrighted materials.” The site also required users to take full responsibility for the content they submitted, thus further helping to diminish Moore’s liability for images he displayed (the biggest liability being that for underage subjects).

Despite being shrouded in legality, IsAnyOneup.com received legal attention from other websites including Facebook, and victims threatening lawsuits.  Facebook issued a cease and desist letter to demand the removal of Facebook links from the website. However, this action did not prevent Moore from posting screenshots to the site of the subject’s profile.  The ease with which images from the Internet may be copied allowed Moore to easily disclose all of the victim’s information.  Most people who appear on the site reported a huge increase in ‘friend requests’ and ‘pokes’ on Facebook from people they do not know. This has led to some victims deactivating accounts to escape the onslaught of attention.

Following a deal with BullyVille.com, an anti-bullying safe haven for bullying victims, Moore took down the site and received a nominal fee for his ‘humanitarian’ decision.  Attempts to go to Moore’s website now automatically link to BullyVille.  Following the site takedown, Moore then continued to target Twitter users with hurtful comments and then turned his attention to his former ally.  Most recently, the BullyVille.com site owner has alleged that Moore has made several defamatory and hurtful statements, causing him to file a defamation claim against Moore.

II. There Must Be Something She Can Do…Right?

There are, unfortunately, very few legal remedies for people whose images and information surface on a revenge porn site. As surprising as it may be to the average sexter, there is not a clear-cut remedy available under American copyright law.  In order to be protected under the United State’s legal system, a work must have a valid copyright.  This occurs if the creation satisfies the conditions required by 17 U.S.C. § 102:  “Copyright Protection subsists…in original works of authorship fixed in any tangible medium of expression…from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” When an individual takes a picture of his or her self (for example a sext), he or she creates a work that falls under the protection of copyright law.  As long as the subject is also the author, typically the person who took the picture, the ownership of the copyright naturally vests with that individual and does not require any form of registration to protect the exclusive rights under copyright law.

Luckily for the victims of IsAnyOneUp and other similar websites, copyright law does provide some recourse.  When one takes a photo, he or she is the author of that photo, and copyright in a work naturally vests with the author. Therefore, all self-taken photographs vest exclusive property interest in the subject (the author and, usually, the victim).  Although the author may send an image to a lover or friend, the Copyright Act provides that the transfer of ownership of a copyright or of any exclusive rights under a copyright must be in a written agreement. Since very few people will create an agreement transferring all rights to the image when sexting, the authors retain full rights to prevent future copying and publication of the image.

Hunter Moore

Moore misconstrued the rights in the image the subjects retain in multiple interviews.   He has incorrectly claimed in interviews that, because the image was intended for someone else the ex who submitted the photograph owns the copyright.  However, that is far from the truth under American copyright law.  The ownership right an ex has in the image differs from a claim to the copyright.  The copyright act provides that the “ownership of a copyright, or of any of the exclusive rights under a copyright, is distinct from ownership of any material object in which the work is embodied.” Although the ex has a property claim to the image in the actual embodiment of the work he or she possesses, there is no property right in what the work contains.

Since the authors/victims retain full copyright ownership of their images, they are able to pursue several avenues of recourse.  First, victims may first submit Copyright Takedown Requests as provided in the Digital Millennium Copyright Act (DMCA).  These requests allow a subject to demand the removal of the photo as long as he or she owns the copyright to the image. In addition to the take down requests, victims may pursue copyright infringement claims.  Luckily for the victims, these actions provide several avenues of relief, and, potentially, damages for the use of the image.

Despite IsAnyoneUp.com’s demise, numerous other websites still exist. To combat the burgeoning popularity of revenge porn sites, victims and lawyers have created websites to help people who have been illegally featured on a revenge porn site. The pro-victim sites, like BullyVille.com and RegainYourName.com, generally explain the steps one can take to have photos removed and instructions on how to initiate an infringement claim and DMCA takedown request.  One lawyer has gone so far as to provide safe sexting tips in his blog. Many victims ask how they could have prevented this from happening.  Obviously, one answer is to be wary of sending explicit images of your self to others via digital transmission. However, if someone who the victim thought he or she could trust places a personal image on the Internet, these resources provide some legal steps he or she can take to regain their privacy.

The ease with which images, documents, and music can be transferred on the Internet presents a different problem than seen in traditional copyright cases.  As more of the population becomes comfortable using the Internet to transmit data, the likelihood of copyright infringement greatly increases.  Although Congress has taken steps to protect against digital infringers with the DMCA, there are still numerous occasions where the exclusive rights of a copyright owner are violated.  The digital world is forcing society to rethink how we should treat ownership rights in copyrighted material.  Revenge porn websites crudely demonstrate how easily private images can be disseminated on the Internet.  Knowing that one’s private image is up on a website that thousands of people, both strangers, friends, and even family, visit every day can severely harm a victim, not just legally but emotionally.  If Hunter Moore has shown us anything of value, it is that the present and future of copyright infringement lies very close to home for some people, and that copyright law needs to adjust to account for the largely unregulated world of the Internet to allow copyright owners to better protect their property.

 

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One Response to To Sext Or Not To Sext: Exploring The Consequences And Remedies Of Digital Flirting

  1. flirting says:

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