Using copyright infringement to remedy a privacy violation
November 20, 2011
I've received many queries about the website IsAnyoneUp.com. The site permits (and effectively encourages) people to post naked or explicit photos of individuals which are then linked to the name of the people portrayed in the images. Often the posting of such photos amounts to an actionable invasion of privacy, publication of private facts, intentional infliction of emotional distress or even defamation (not to mention other potential civil and criminal actions). This is true, in particular, when the individual depicted has not consented to the publication of his or her image.
The operators of IsAnyoneUp presumably attempt to limit their liability for these types of privacy violations by asserting immunity under Section 230 of the Communications Decency Act. That Act, however, does not immunize intermediary sites from claims based on intellectual property law. [See 47 U.S.C. § 230(e)(2).]
In this Fox News interview, Evan Brown, a Chicago-area internet lawyer and founder of the Internet Cases blog, discusses one potential intellectual property claim victims of privacy invasions may use against a site like IsAnyoneUp: copyright infringement. While it may strike some as strange to use copyright law -- a law generally intended to encourage cultural development and creativity -- to remedy what is really a privacy problem, this does not surprise me given the broad immunity provided intermediaries by Section 230. Individuals harmed by sites like IsAnyoneUp are left with few claims that can really "stick" against the user-generated content site so, provided the facts of a particular case support the claim, copyright infringement may be an appealing option for victims of these sorts of online privacy invasions. Indeed, in addition to injunctive relief, copryight law includes important remedies that are unavailable under many privacy laws: the award of statutory damages (ranging as high as $150,000) and attorneys fees and costs. (The latter point is especially important for victims who need an attorney willing to work on a contingency fee arrangement.)
For more information, check out WithoutMyConsent's general information resources discussing Federal copyright infringement. We provide a brief summary of a few cases involving sexually explicit photos in which copyright claims were brought and also provide some basic practice pointers. In one case, Doe v. Fortuny, you'll see that the plaintiff was awarded nearly $75,000 in damages and attorneys fees, in addition to an injunction. As shown in the Fortuny case, a plaintiff wishing to pursue this kind of copyright claim, may wish to proceed as a pseudonymous plaintiff in order to avoid worsening the harm associated with the invasion of privacy. (Also, check out this more detailed write-up about the Fortuny case over at the Citizen Media Law Project's website.)