Full and Upright Position: How That US Airways Tweet Maybe Violated Revenge Porn Laws

On Tuesday afternoon, an extremely graphic photograph was tweeted from the official US Airways account. And by ‘extremely graphic,’ I mean a picture of a naked lady with a model plane in . . . one of the only destinations that US Airways doesn’t fly to.

The image was re-tweeted dozens of times before US Airways removed the image. And major news outlets covering the story, like Huffington Post, often linked to the image.

Here’s the thing: Sharing that photo maaay have violated some states’ revenge porn laws.

Currently, seven states – Alaska, California, Idaho, New Jersey, Utah, Virginia, and Wisconsin – have “anti-revenge porn” laws. These laws are obviously meant to target sexually explicit media that is publicly shared online without the consent of the pictured individual. But not all of these laws require that the images be shared with malicious intent.

The recently passed Wisconsin law, for example, applies to any person who “posts, publishes, or causes to be posted or published, a private representation if the actor knows that the person depicted does not consent to the posting or publication of the private representation.” New Jersey’s law applies to the disclosure of any “image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or sexual contact, unless that person has consented to such disclosure.

This is why specific intent requirements – like the one in the Utah law – are key to well-drafted revenge porn legislation. Broad revenge porn legislation may provide prosecutors and law enforcement with a powerful tool, but those laws may also criminalize a lot more than ‘revenge porn.’

Like, say, re-tweeting the social media faux pas of major airlines.

h/t Techdirt

Wikipedia as a Resource for Legal Research

In a recent court opinion, Judge Statsinger of the Criminal Court of the City of New York, cites to my definition of “revenge porn” in Footnote 1. To get technical, Judge Statsinger cites to the Wikipedia article about revenge porn, which I wrote last fall.

It’s exciting to see something that I wrote cited in a legal opinion, but it’s more exciting that Judge Statsinger (or at least, one of his clerks) recognized how Wikipedia operates as a valuable resource for legal research.

To be clear: there is an important difference between “resource for legal research” and “legal resource.” And I’m talking about the former.

Judge Richard A. Posner, of the United States Court of Appeals for the Seventh Circuit, has described Wikipedia as “a terrific resource.” He isn’t alone in his thinking: Nearly 1,000 cases have cited to Wikipedia, including cases in every federal circuit court. It’s regularly referred to in motions, briefs, and law review articles. And despite continued skepticism about Wikipedia’s reliability, Wikipedia frequently serves as the starting point for legal research.

Even Judge Posner, in all his enthusiasm, added an obvious caveat: “It wouldn’t be right to use [Wikipedia] in a critical issue. If the safety of a product is at issue, you wouldn’t look it up in Wikipedia.”

As the encyclopedia anyone can edit, it’s understandable that people have an immediate (mostly negative) reaction to courts of law citing to a resource like Wikipedia. Even though the information in Wikipedia articles can be audited, either by reviewing who made edits to an article or analyzing the sources it cites, there is a generally impression that Wikipedia has no place in scholarship – legal, or otherwise. (If you’re curious about the accuracy of Wikipedia, I strongly recommend the Wikipedia article on the topic.)

Wikipedia is not a substitute for citations to case law or legal treatises. But Judge Statsinger’s decision is a great example of how Wikipedia can effectively be used in a legal decision.

I’ve seen this trend more and more, which is why I’ve proposed a Wikimania 2014 Workshop about “Wikipedia for Lawyers.” My proposal focuses on two issues: best practices and contribution  values.

The short version of my pitch is that legal researchers should be educated about what happens behind the screens at Wikipedia – about how articles’ histories can be viewed, how to cite to specific versions of articles, and how reliability can be audited. And, as NYU Law’s inaugural Innovation Law and Policy Editathon demonstrated, lawyers are excited to contribute to and improve Wikipedia once they have a deeper understanding of how it works.

The full proposal is available here.

Revenge is a Kind of Wild Justice

A snippet from my article in The Atlantic, Our Best Weapon Against Revenge Porn: Copyright Law?:

“When On The Media’s Bob Garfield asked Hunter Moore whether IsAnyoneUp violated copyright laws, Moore offered this ridiculous gem of a reply:

“[B]ut when you take a picture of yourself in the mirror, it was intended for somebody else so, actually, the person you sent the picture to actually owns that picture, because it was intended as a gift. So whatever the—that person does with the picture, you don’t even own the nude picture of yourself anymore … So that’s how I’m protected.”

Moore is dead wrong.

More than 80 percent of revenge porn photos are selfies, meaning that, as the “authors” of their selfies, the majority of victims own the copyright in their photos. Victims can use the takedown provisions Digital Millennium Copyright Act (“DMCA”) to de-index websites with their photos from search engines like Google and ask the websites themselves to remove the photos, all without having to hire a lawyer.”

My student Note, Using Copyright to Combat Revenge Porn, explores how the majority of revenge porn victims can use copyright law to protect themselves.

Plagiarism Is The New Original, Man

The word law is against my principles. [1]

The problem begins with the legal fact that authorship is inextricably bound up in the idea of ownership and the idea of language as Intellectual property. Language and ideas flow freely between people Despite the law. [2]

It’s not plagiarism in the digital age – it’s repurposing.[3]

Copyright law has to give up on its obsession with “the copy.” The law should not regulate “copy’s” or “reproductions” on there own. It should instead regulate uses – like public distributions of copyrighted work – That connect directly to the economic incentive copyright law was intended to foster. [4]

The above are excerpts from actor Shia LeBouf’s e-mail interview with Bleeding Cool

After being accused of plagiarism and copyright infringement, LeBeouf produced this apology. Bleeding Cool mistakenly stated that the exchange “appear[s] to be in Shia’s own words,” but every line is lifted from another source – even LeBeouf’s idea of commenting on plagiarism using lifted quotes has been done before (and far better) by Jonathan Lethem. The grammatical errors make sourcing LeBeouf’s statement difficult, but not impossible:

[1] Marcel Duchamp, commenting on Dada.
[2] Gregory Betts, Poets Against Authorship.
[3] Kenneth Goldsmith, article by the same name.
[4] Larry Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy.

Update 1/3/13: The final line is ripped from Steve Jobs.

You Make Me Want to GIRLS!

The continuing irony surrounding  BeastieBlox (that’s what I’m calling it now). The Beastie Boys’ “Girls’” bears an uncanny similarity to the Isley Brothers’ “Shout!” Listen for yourself:

Rhymin’ & Stealin’: Beastie Boys and GoldieBlox II

“[T]he GoldieBlox ad is not primarily aimed at “advertis[ing] a product.” While there is a glimpse of a GoldieBlox toy at the very end, the video is really meant to garner publicity for GoldieBlox itself while spreading the company’s message that traditional girl toys aren’t all that great for modern girls. GoldieBlox’s reboot of “Girls” is a sort of “superparody.” It’s poking fun at the Beasties’ song. But it’s also linking the song to a specific and important social critique—that today’s girls’ toys reflect the same retrograde attitude toward girls that the song represents. If anything, parodies like GoldieBlox’s—which provide broad-based social commentary wrapped in a parody of a popular song—ought to be entitled to more deference than conventional parody sold “for its own sake.” GoldieBlox’s parody communicates a broad critical message—precisely what the fair use doctrine seeks to protect.”

NYU Law Professor Chris Sprigman and UCLA Law Professor Kal Raustiala explaining  why the Beastie Boys are going to get bench-slapped in Slate

Give Me Your Tired, Your Infringers

FOREVERRRYou know that USPS stamp, the one with Lady Liberty?

Turns out that’s not the Statute of Liberty – just statute of liberty.

The stamp became the subject of a bizarre copyright infringement battle this week when Las Vegas-based sculptor, Robert S. Davidson, filed a lawsuit against the United States Postal Service. The New York-New York casino commissioned Davidson to design a Lady Liberty to grace its imitative skyline, but Davidson never visited New York during the design process. The result, Davidson  alleges, is a “softer, more feminine, and realistic silhouette” for Lady Liberty, including a “fuller chin, a friendlier expression and pronounced cupid’s bow shape of the upper lip.” Those changes resulted in a “‘fresh-faced,’ ‘sultry’ and ‘even sexier” rendition of the statute.

Davidson claims that his changes “brought a new face to the iconic statue.” That must be what appealed to USPS when looking through a Getty Images lineup: USPS wanted a “distinctive and different” version of the iconic statute – what better than a version that was not the statute at all?

USPS apparently assumed the rendition they chose was the New York original, which is in the public domain.

A few folks have speculated that Section 120 of the Copyright Act should allow USPS to use a picture of this publicly visible work, but Section 120 only applies to representations – like photographs or paintings – of architectural works. (It’s the reason artists can sell pictures of the New York City skyline without being sued by the designers of the Chrystler Building.) Sculptures, however, are not “architectural works” for purposes of Section 120.

And just in case your mind is wandering to Section 107, more commonly known as “fair use,” Davidson has some strong precedent on his side.

USPS was bench-slapped earlier this year for using the Korean War Memorial on a commemorative stamp without permission from its creator, Frank Gaylord. The Federal Circuit reversed the lower court’s finding of fair use, noting that “allowing the government to commercially exploit a creative and expressive work will not advance the purposes of copyright in this case.”

Fight For Your Right (to fair use)

UPDATE 12-10-13: The Beastie Boys filed a counterclaim for copyright infringement and, presumably, rhymin’ and stealin’.

Start-up toy company GoldieBlox recently filed a lawsuit seeking declaratory judgment that its ‘Girls’ video does not infringe on the Beastie Boys’ copyright.

Goldieblox is a start-up toy company that encourages women to go into STEM fields by making toys that “get girls building.” The company’s ‘Girls’ video went viral last week.  The video features a parody of the Beastie Boys’ License to Ill hit track, ‘Girls.’

Let’s compare the two after the jump . . . Read the rest of this entry »

We’re Worried About Another Kind of War


For the first time in Pew Research Center polling history, more Americans are worried about restrictions of civil liberties than about protection from terrorism. Pew also released in-depth statistics about Americans’ response to NSA surveillance and civil liberties in July.

Google Books Is The Best Ever

“In my view, Google Books provides significant public benefits. It advances the progress of the arts and sciences, while maintaining respectful consideration for the rights of authors and other creative individuals, and without adversely impacting the rights of copyright holders. It has become an invaluable research tool that permits students, teachers, librarians, and others to more efficiently identify and locate books. It has given scholars the ability, for the first time, to conduct full-text searches of tens of millions of books. It preserves books, in particular out-of-print and old books that have been forgotten in the bowels of libraries, and it gives them new life. It facilitates access to books for print-disabled and remote or underserved populations. It generates new audiences and creates new sources of income for authors and publishers. Indeed, all society benefits.” 

from Judge Chin’s decision granting Google summary judgment and dismissing the complaint in the Google Books case


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