I’m moving my blog-activity over to SPITFIRE, where I’ll be covering weekly news about speech, privacy, innovation, and technology. Hope you’ll join me over there!
I came across a quote a few weeks ago—one that so perfectly encapsulates the outdatedness and skepticism surrounding copyright law—that I couldn’t believe I hadn’t seen before: “The 1976 Copyright Act is a good 1950 copyright law.”
It was attributed to someone I didn’t know: Barbara Ringer.
She was one of only a few women in her graduating class at Columbia Law School back in 1949. Just after graduation, she took a position with the Copyright Office as an examiner, where she determined the registrability of applicants’ submitted works. When she wasn’t busy working her way up through nearly every position at the Copyright Office, Ringer was drafting the Universal Copyright Convention, attending international copyright conferences, and teaching at Georgetown Law Center as the university’s first woman adjunct professor of law.
She conducted empirical research. She published her work in law journals. She even wrote the article about copyright law for the Fifteenth Edition of theEncyclopedia Britannica.
And then I realized that I did know her. We all sort of know her: She was one of the lead architects of the 1976 Copyright Act. I went to law school to become a copyright lawyer. I had read her copyright law. I’d taken classes about her copyright law. I’d even written about her copyright law. And yet, I had never heard a word about her.
- from The Lost and Found Legacy of Barbara Ringer. Learn more about Babs over at The Atlantic.
Hawaii recently became the ninth state – along with Arizona, Colorado, Georgia, Idaho, Maryland, Utah, Virginia, and Wisconsin – to pass a criminal revenge porn law this year.* It’s another overbroad attempt to target revenge porn, much in the same vein as Arizona’s revenge porn law.
The Hawaiian statute criminalizes the “unlawful distribution of sexual representation,” defined as follows:
A person commits the offense of unlawful distribution of sexual representation if a person, without the consent of the person represented, intentionally or knowingly reproduces, distributes, exhibits, publishes, transmits, or otherwise disseminates a representation of a nude person or of a person engaging in sexual conduct.
(a) The person intentionally or knowingly installs or uses, or both, in any private place, without consent of the person or persons entitled to privacy therein, any device for observing, recording, amplifying, or broadcasting another person in a stage of undress or sexual activity in that place; or
(b) The person knowingly discloses an image or video of another identifiable person either in the nude, as defined in section 712-1210, or engaging in sexual conduct, as defined in section 712-1210, without the consent of the depicted person, with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships; provided that:
The full text of Hawaii’s revenge porn law, H.B. 1750, is available here. (UPDATE: An earlier version of this article discussed a previous version of HI’s proposed legislation – additional explanation is provided below. Corrections and strikethroughs reflecting the enacted bill have been added.)
There is no intent requirement. There is no harm requirement. And Hawaii’s definition of ‘nude’ is one of the broadest I’ve seen in any revenge porn law:
“‘Nude” means unclothed or in attire, including but not limited to sheer or see-through attire, so as to expose to view any portion of the pubic hair, anus, cleft of the buttocks, genitals or any portion of the female breast below the top of the areola. That emphasis is added: as written, Hawaii’s definition of nude encompasses plumber’s butt, and wet T-shirt contests, and sideboob, which apparently occupies its own dedicated section of Huffington Post. This law would apply to almost any family vacation photograph taken on a crowded Hawaiian beach and uploaded to Facebook. Let that sink in. (Hawaii’s revenge porn law no longer includes any definition of ‘nude.’)
And Hawaii’s intent requirement is incredibly broad. A person commits the offense of violation of privacy in the first degree if he or she discloses the image
with intent to harm substantially the depicted person with respect to that person’s health, safety, business, calling, career, financial condition, reputation, or personal relationships.
Enough about what the law does – let’s talk about what the law doesn’t do. Many revenge porn laws, including Utah’s recently enacted H.B. 0071, provide exemptions to disclosures of nude images that shouldn’t be subject to criminalization.
Take, for example, reporting harassment in the form of unsolicited naked pictures from a boss, professor or co-worker. Utah’s law carves out an exception for the non-consensual disclosure of a nude image to law enforcement agencies, as well as distribution of an image in the course of a law enforcement investigation.
That isn’t the only exception to Utah’s revenge porn law. A doctor who displays a photograph of a patient’s breast for purposes of medical treatment – say, showing the image to her surgery team before a mastectomy – doesn’t need the patient’s consent before every display. Utah’s revenge porn law also excludes images that appear in commercial settings, or that have been voluntarily and publicly exposed by the pictured individual.
Hawaii’s revenge porn law
includes zero statutory carve-outs exempts disclosures “in the execution of a public duty or as authorized by law,” without elaboration. It also provides statutory carve outs for:
(i) . . . images or videos of the depicted person made:
(A) When the person was voluntarily nude in public or voluntarily engaging in sexual conduct in public; or
(B) Pursuant to a voluntary commercial transaction; and
(ii) Nothing in this paragraph shall be construed to impose liability on a provider of “electronic communication service” or “remote computing service” as those terms are defined in section 803-41, for an image or video disclosed through the electronic communication service or remote computing service by another person.
As I’ve flagged before, revenge porn laws often exclude an exception for what I’ve been calling “noteworthy nudity.”
Think about news coverage that includes accompanying images of Anthony Weiner’s danger zone or the US Airways tweet of an unknown woman’s landingstrip. Or, most recently, the allegations that John Schindler, a professor at the U.S. Naval War Academy, engaged in a sexually explicit conversation that included an image of his own, naked warhead. Gawker broke that today, with accompanying images. I’m not linking to it here – I don’t know what the statutory definition of
‘distributes’ or ‘transmits’ ‘discloses’ might be, since the term is not defined in Hawaii’s revenge porn statute. As it stands, media outlets that included photographs in news coverage of these stories are engaged in the unlawful distribution of sexual representation. Under Hawaii’s revenge porn law, these journalists are may be criminals.
UPDATED: Even with the intent requirement in Hawaii’s enacted revenge porn statute, I’m not certain that all media coverage of notable nudity would be shielded. Particularly in Schindler’s case, who regularly engaged in caustic tweet-exchanges, it may be difficult to demonstrate that no journalists involved with a decision to publish accompanying photographs had the intent to cause harm to his business, reputation or personal relationships.
UPDATED: Relatedly, Section 803-41, referenced in the (ii) exemption applies to electronic communication services (“any service that provides to users thereof the ability to send or receive wire or electronic communications”) and remote computing services (“the provision to the public of computer storage or processing services by means of an electronic communication system”). As defined by Hawaiian statute, these terms differ from the interactive computer service (“any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions”) protected by Communications Decency Act Section 230. The language of the Hawaiian exemption appears to apply to services like SMS, e-mail, and cloud storage, rather than publishers of user-generated content. Although the protections of Section 230 – which is a federal law – would apply to a publisher like Gawker, the current language of the Hawaiian statute seems to be in conflict with Section 230.
Revenge porn is an ugly problem. I understand why victims and legislators are advocating for criminal laws as a possible solution. But an overbroad law that criminalizes legitimate speech is a different sort of problem, not a solution.
The Supreme Court has held that offensive, embarrassing, disgusting, and even false speech warrant protection under the First Amendment. The Court recently even granted cert in a case that will determine the extent to which threats deserve protection. Laws that regulate speech based on its content have a high constitutional hurdle to overcome. As the broadest revenge porn law I’ve seen to date, it is doubtful that Hawaii’s law comes close to clearing that hurdle.
*Three states – Alaska, California, and New Jersey – previously passed laws that apply to revenge porn.
UPDATE 6-25-14: The final version of the Hawaiian bill that Gov. Abercrombie signed into law is here. The National Conference of State Legislatures, which catalogs current and pending revenge porn legislation, linked to the previous version discussed above. Carrie Goldberg flagged the error – the NCSL has since updated its link.
“I am not the law, but I represent justice so far as my feeble powers go.”
Good things happen when copyrighted works fall into the public domain: information becomes more readily available, the work itself becomes more readily available, and other authors can recreate, borrow and remix without fear of expensive legal action.
However, parsing out when a copyrighted work will fall into the public domain is an incredible mess.
Based on the current world of Sherlock Holmes adaptations, from the recent BBC series, to the film series, to the American television adaptation, it may seem obvious that the 46 Holmes stories and 4 novels penned by Sir Arthur Conan Doyle between 1887 and 1923, as well as their rich characters, had fallen into that mystical public domain.* How else, you might ask, could these major studios – BBC, Warner Brothers, CBS, respectively – draw water from the same quirky, observant detective well?
The answer is far from elementary.
In 2011, Leslie Klinger released an anthology, A Study In Sherlock, of stories about Sherlock Holmes written by contemporary authors. The Doyle estate demanded a $5,000 copyright license from Klinger’s publisher, which complied.
Klinger and his co-editor were in talks for a companion book when the Doyle estate discovered that a sequel was in the works. This time, the estate didn’t ask for another copyright license.Instead, the Doyle estate threatened to sharply limit distribution: “[D]o not expect to see it offered for sale by Amazon, Barnes & Noble, and similar retailers. We work with those compan[ies] routinely to weed out unlicensed sales of Sherlock Holmes . . . and will not hesitate to do so with your book as well.” Rather than shell out thousands of dollars for a bogus copyright license, Klinger filed a lawsuit for declaratory judgment saying he had the right to freely draw from the Holmes stories and novels in the public domain.
And here enters today’s decision out of the Seventh Circuit.
The estate’s claim wasn’t so much of a three-pipe problem as a pipe dream: it was essentially asking the court to extend copyright protection beyond the statutory terms set by Congress. As Sherlock Holmes once said, “In solving a problem of this sort, the grand thing is to be able to reason backward.” That’s more or less what Judge Posner does in his decision. After smoothing over the jurisdictional wrinkles, Judge Posner writes:
“We cannot find any basis in statute or case law for extending a copyright beyond its expiration. When a story falls into the public domain, story elements – including characters covered by the expired copyright – become fair game for follow-on authors . . . The ten Holmes-Watson stories in which copyright persists are derivative from the earlier stories, so only original elements added in the later stories remain protected . . . With the net effect on creativity of extending the copyright protection of literary characters to the extraordinary lengths urged by the estate so uncertain, and no legal grounds suggested for extending copyright protection beyond the limits fixed by Congress, the estate’s appeal borders on the quixotic.”
The full opinion in Klinger v. Conan Doyle Estate, Ltd. is available here (emphasis added).
Well said, Judge Posner. There can be but one most perfect reasoning and observing machine, but this outcome is spot-on. Judge Posner nestles another gem in his opinion, for folks who are are worried about eeking-toward-infinite copyright terms. “The spectre of perpetual, or at least nearly perpetual, copyright,” he writes, “looms, once one realizes that the Doyle estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.”
I hope Disney is paying close attention: Sherlock Holmes is a perfect illustration of how limited copyright terms encourage innovation. With Holmes and Watson in the public domain, we have multiple Holmes franchises – not to mention the companion fan fiction communities and previous iterations – recasting, expanding, and reimagining Doyle’s vast world, centered around one coke-addled, crime-solving genius.
*The remaining 10 stories published between 1923 and 1927 will gradually fall into the public domain between 2018 and 2022, due to the terms in the 1998 Copyright Term Extension Act.
I’ve been working with copyright matters for six years and, until today, I had never heard of Barbara Ringer.
Maybe you haven’t either. Barbara Ringer is, essentially, the reason we have the 1976 Copyright Act.
When I came across her article on Wikipedia, it was short, poorly sourced, and sometimes incorrect. So, as part of the WikiCon 2014 edit-a-thon, I set out to improve it. I set out to tell the story of Barbara Ringer.
Almost as soon as Ringer began working at the Copyright Office in 1949, she began figuring out how to update the 1909 Copyright Act. When the 1909 Act was passed, there was no commercial radio. No television. No copy machines. Ringer drafted – almost entirely on her own – the legislation that brought the Copyright Act up to date. Yes, Ringer’s legislation extended the term of copyright protection from 28 to life of the author, plus seventy years. But her legislation also codified the fair use doctrine.
I found out so many incredible things about this woman. I learned that she was one of the first women graduates from Columbia Law School. I learned that she was the first woman to serve as Register of Copyrights. I learned that she became the first woman Register because successfully she sued her employer of 22 years for sex and race discrimination when she was passed over for promotion in favor of a man.
And I learned that Barbara Ringer wrote the article about copyright law for the Encyclopedia Britannica, a sort of proto-Wikipedian in her own right.
Learning about this woman’s life – this woman who, despite my years working with copyright law, I knew nothing about – was magical. As I read more articles about Barbara, I felt like I was getting to know her. I started thinking of her as “Babs.” I wondered what her voice sounded like. When I found out that she passed away due to complications of dementia, I felt a sinking knot in my stomach. I had just found this friend, this fellow woman in copyright, only to realize that she was no longer here.
And I discovered something else. Almost as soon as her life’s work came to fruition with the enactment of the 1976 Copyright Act, she began to back away from the legislation. She called the law “a good 1950 copyright law.” She signed on to the failed Copyright Reform Act of 1993. She said that her legislation “may be resilient enough to serve the public interest for some time to come . . . [but] some of its inadequacies are already becoming apparent, and no prophet is needed to foretell the need for substantial restructuring of our copyright system before the end of this century.”
Perhaps most poignant of all, she wrote something which so perfectly fits into my personal ethos, into to the Wikipedia ethos, that it almost felt as if she’d written it for me to find: The public interest goal of copyright law should be “to provide the widest possible access to information of all kinds.”
I think she’d like that I found that quote in her law review article, which is available for free online. And I think she’d like that she has an encyclopedia article all her own – her own contribution to enhancing access to the sum of all human knowledge.
I presented “Wikipedia for Lawyers” at the inaugural Wikimedia Conference USA yesterday.
Lawyers, law students, and law nerds gathered to talk about how to use Wikipedia for legal research or as a resource in legal writing; how United States courts treat Wikipedia and how often U.S. courts cite to Wikipedia in their opinions; why folks with legal expertise and interests should contribute to the encyclopedia anyone can edit.
The talk was video taped – hopefully I’ll be able to provide a link soon. In the meanwhile, I’m uploading my slide deck from the talk. You can download the slides as a PDF by clicking the first slide above!
Earlier this month, I wrote about Arizona’s revenge porn law, which doesn’t provide an exception for newsworthy republication, thus making criminals out of journalists who re-posted Anthony Weiner’s dangerzone pictures or embedded the US Airway’s tweet of a woman’s landing strip.
There’s a new revenge porn law making its way through the legislature, and it’s bigger, broader, and badder than the Arizona law. And surprisingly, it’s out of Michigan.
Here’s what the law says:
A person shall not do either of the following:
(A) Post on the Internet any sexually explicit photograph, drawing, or other visual image of another person, regardless of whether the posting was with the intent to frighten, intimidate, or harass any person.
The full text of Michigan’s proposed revenge porn law is here.
The Michigan law, as currently drafted, doesn’t require that the image be posted without the consent of the pictured individual; it doesn’t even require the image to be posted with the intent to “frighten, intimidate, or harass” the pictured individual. And, a first among revenge porn legislation, the law applies to drawings.
So not only would Michigan’s proposed law criminalize the same journalists as Arizona’s law, the law would also criminalize the drawings of Anna Gensler, who draws the men who harass her on Tinder and OKCupid in the buff (even though Gensler includes an “I’m going to draw you naked if you send me rude messages” disclaimer on her online profiles).
But wait! There’s more:
(B) Having posted on the Internet any sexually explicit photograph, drawing, or other visual image of another person, regardless of whether the posting was with the intent to frighten, intimidate, or harass any person, refuse or otherwise fail to remove that explicit photograph, drawing, or other visual image from the Internet upon the written request of that other person. This subsection applies regardless of whether the other person consented to the posting of that photograph, drawing, or visual image unless that other person knew or had reason to know that the photograph, drawing, or other visual image was sexually explicit and signed a release knowingly allowing that photograph, drawing, or other visual image to be posted on the Internet.
Beyond the revenge porn context, the proposed Michigan law would allow someone who posed nude for a college art class to request removal of a drawing from someone’s online portfolio months or years after the fact, even though the depicted person consented to the drawing and the artist owns the copyright.
If you’re thinking, “But that would be bananas!” – you’re absolutely right. And it’s almost undoubtedly unconstitutional. But that didn’t stop Arizona.