Archive for: September, 2013

Filelocked: Hotfile liable for rampant copyright infringement

[infringement] originally appeared on [#protected_0#]


Hotfile is liable for the “staggering” amount of infringement it financially benefitted from, and it is not protected by the DMCA safe harbor for online service providers.

That is the conclusion of U.S. District Court Judge Kathleen Williams of the Southern District Court of Florida. Williams [#protected_1#], but the decision had been under seal until this past Friday.

What makes this case notable is that it was brought by the five major motion picture studios (Disney Enterprises, Inc., Twentieth Century Fox Film Corporation, Universal City Studios Productions LLLP, Columbia Pictures lndustries, Inc., and Warner Bros. Entertainment Inc.) against a fairly popular filelocker service (at least at the time the suit was filed). This appears to be the first time an infringement lawsuit from major players in the creative industries had been brought against a filelocker service specifically — previous efforts have aimed at P2P services and the like. Add to that the fact that the suit was filed in Florida, outside the 2nd and 9th Circuits where the bulk of copyright litigation occurs, and you have a situation where the court is interpreting many DMCA provisions on a blank slate.

Oh, and [#protected_2#] also comes in at just under 100 pages.

I had [#protected_2#] and both parties’ arguments. That was over a year ago, which is an unusually long time between hearing and order on a summary judgment motion. Part of that may have been the sheer complexity of the issues; part of that may have been the aggressive litigation posture taken by both sides. The court diplomatically refers to the many “robust pleadings” filed without leave of court and notes, certainly an understatement, that “the parties do not agree on much.”

Whatever the case may be, the issue boils down to a familiar one. Hotfile, an “off-shore technology company” provides online file storage. As is often the case, infringing works are among the files that were stored and shared by Hotfile users. The film studios argued that Hotfile should be held liable for such infringement because it contributes to, encourages, or benefits from such infringement.

As the court explains, Hotfile’s storage locker service allows registered users to upload any file they want from their computer to Hotfile’s servers to be stored. The service automatically generates a link where the file can be accessed. The files or links are not otherwise private; any member of the public can access them so long as they know the link. Hotfile operated an affiliate program which paid users when they directed others to Hotfile file locations, encouraging affiliates to catalog and broadcast Hotfile links. Hotfile also provided premium service, which gave users additional file space and faster download speeds for a monthly fee.

The court begins with a careful, comprehensive discussion of the facts (nearly 35 pages worth). As we’ll see in a moment, the question of whether Hotfile had adopted and reasonably implemented a repeat infringer policy will play a key role in determining whether the service is protected by the DMCA safe harbor, but I do want to highlight the court’s discussion regarding the policy that was in place — some of these numbers are staggering. The evidence reveals that when the studios had filed their complaint, Hotfile had received a total of 10 million takedown notices for infringing content, yet had only terminated 43 users – 33 of those as a result of a court order from prior litigation. At the same time, nearly 25 thousand Hotfile users had accumulated more than three infringement notices; 61 of those users had over 300 notices each. After the litigation began, Hotfile adopted a “revamped” repeat infringement policy, and the results were dramatic: 444 of its 500 highest paid affiliates were terminated for repeated infringement.

The DMCA safe harbor and the repeat infringer policy

Turning to the legal issues, the court begins with the DMCA safe harbor.[infringement] As it notes, if Hotfile qualifies for the safe harbor, it is immunized from any liability for infringement. If it doesn’t, the court must then separately consider if Hotfile is liable. The court cites to the relevant legislative history of the DMCA to explain the law’s motivations in striking a balance between protecting creators’ rights and promoting the growth of online services.

The DMCA applies to online service providers, which Hotfile clearly is, and one of the safe harbors covers storage at the direction of the user, which the court says covers the activities at issue here.[#protected_0#]

The DMCA safe harbor requires that a service provider

has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.[#protected_1#]

The court here turned to the legislative history and other courts to flesh out the details of this provision, since the terms are not defined in the statute. It determined that a policy is “reasonably implemented” if it terminates users, under appropriate circumstances, who “repeatedly or blatantly infringe copyright.” At a minimum, this means that a policy “must be capable of tracking infringers.” Hotfile, said the court, “effectively did nothing to tie notices to repeat infringers.” This, in addition to the breathtaking scope of infringement that Hotfile essentially ignored took the service provider outside the protection of the DMCA safe harbor. The court concluded:

Here, the scale of activity – the notices of infringement and complaints from copyright holders — indicated to Hotfile that a substantial number of blatant repeat infringers made the system a conduit for infringing activity. Yet Hotfile did not act on receipt of DMCA notices and failed to devise any actual policy of dealing with those offenders, even if it publicly asserted otherwise. It has presented no evidence to show that the small number of removals that did occur were for any reason other than threatened Iitigation or by court order. lndeed, it has been unable to point to a single specific user who was terminated pursuant to its policy of manual review and exercise of ”discretion.” Documents and statistics indicate that there was never any realistic threat of termination to Hotfile’s users, whose activities were protected by the company’s indifference to infringement notices.

Read the rest

What is Revenge Porn – Deseret News

The Internet has opened a Pandora’s box filled with conflicts between individual privacy and free speech, the latest coming as a result of a particularly sleazy practice known as revenge porn. State governments are starting to look for ways to punish people who post compromising photographs online as a way to wreak vengeance on a former spouse or lover.

States on the forefront of the movement, particularly California, have found the road to regulating such behavior is strewn with legal potholes. Nevertheless, efforts to curb the practice should move forward, and the issue is worthy of consideration by the Utah Legislature when it convenes in January.

Of course, the problem wouldn’t exist if people adhered to traditional tenets of modesty and resisted the temptation to pose for compromising photographs they intended for the eyes of one person only. These become painfully and criminally damaging when put online for strangers to peruse worldwide. Once distributed, they cannot be retrieved. Instead, they proliferate in boundless ways, leading to permanent and repeated violations of the subject’s dignity and privacy.

Using the Internet as a tool of reprisal is repugnant behavior, but it is apparently becoming commonplace, according to experts who have chronicled a vast and growing number of online examples.

Fashioning a law to prosecute people who post such photos is proving difficult. A measure before the California Assembly would make it a crime to distribute images

“…with the intent to cause serious emotional distress, and the other person suffers serious emotional distress.”

Intent, however, is tricky to prove, and in such a prosecution, a defendant could argue he or she did it with other intentions. And one can only imagine the legal gymnastics that would ensue when lawyers parse the term “serious emotional distress.”

In addition, such laws face automatic First Amendment hurdles. In Utah, lawmakers encountered similar obstacles while trying to deal with the problem of “sexting,” the practice of sending sexually explicit messages by email or text. Laws allow for prosecution of sexting under child pornography statutes, which can be a harsh remedy for behavior that often results from a complete lack of judgment and an immature understanding of how the world works. But the advent of revenge porn is clearly proving that taking or posing for lewd pictures can lead to something far from harmless.

That’s why educators, counselors and child psychologists are right to lobby for more efforts to educate teenagers about the perils of such sordid use of technology. While kids may not know better, adults should.

In the case of revenge porn, the victims share in complicity for creating the weapons of their own distress. Nevertheless, it should be against the law to intentionally hurt someone by whatever means. Legislative bodies should explore ways to address the problem.

Revenge porn – Deseret News
revenge porn – Google News… Read the rest

Revenge porn victim tells story, fights for change – WTOP

WASHINGTON – “It was completely devastating when I first found the pictures – I could feel myself go into shock.”

Holly Jacobs had no idea the racy photographs she’d shared with her boyfriend would be used against her in a publicly humiliating way after they broke up.

Yet, in 2009 a friend called to say Jacobs’ Facebook account had been hacked and a nude photo was online.

And it got worse.

“My photos and a video of me were up on a revenge porn website,” says Jacobs, who legally changed her name in the aftermath.

With her name, phone number and email address posted online, Jacobs was bombarded with unwanted attention. Her photos and videos were even sent to her boss.

Revenge porn sites make no bones about why they exist.

“They bill themselves as places in which we can get back at our exes,” says Professor Danielle Keats Citron of the University of Maryland law school.

And in most cases the sites are legal, says Citron.

New Jersey is the only state to make it a felony to share a person’s nude images without that person’s consent, although a bill cracking down on revenge porn in California is expected to be in the hands of the state’s governor shortly, Bloomberg reports.

“If this happened in Maryland it would be prosecuted under a statute called ‘Misuse of Electronic Communication,'” which is a misdemeanor with a maximum prison sentence of one year, says Maryland Attorney General Doug Gansler.

“It’s basically cyberharassment, which is an attempt to harass, alarm or annoy without any legitimate purpose to do so,” Gansler says.

In Virginia, harassment by computer is also a misdemeanor.

See more on the California effort in the video below:

Florida, where Jacobs lives, recently rejected a call to toughen its laws to protect against revenge porn.

After four years of trying to get the images taken down, Jacobs has sued her ex-boyfriend, Ryan Seay, who reportedly has said someone hacked into his computer and posted the photographs of Jacobs. Seay’s attorney, Charles Arline, denies the allegations against his client. “We’re anticipating making these legal arguments very soon,” he tells WTOP.

Jacobs also has created an advocacy website called End Revenge Porn.

The website refers to revenge porn as “a form of cyber-rape.” Jacobs warns women to protect their privacy by avoiding sharing potentially compromising photos.

“I know you might love and trust your boyfriend, but you just never know what’s going to happen when you break up,” says Jacobs.

Having personal images go viral is painful for any victim, Jacobs says. “Imagine telling your dad that there are nude photos and a video of you on the Internet,” says Jacobs.

Citron is advocating for Congress to amend the federal cyberstalking law to cover the use of any computer service that produces or discloses a sexually graphic image of a person without that person’s permission.

Revenge porn victim tells story, fights for change – WTOP… Read the rest

Revenge porn victim devotes life fighting to change nation’s laws – Fox News

Holly Jacobs Revenge Porn Victim

Holly Jacobs, 30, is fighting to change the nation’s laws after private nude images of herself were posted on so-called “revenge porn” websites, allegedly by her ex-boyfriend, without her consent or knowledge. (M.A. Williams)


When Holly Jacobs sent nude photographs of herself to a long-distance boyfriend she loved and trusted, the 23-year-old woman never imagined the horror that would befall her.

In August 2009, less than a year after the pair mutually ended their three-year relationship, Jacobs did a Google search of her name and discovered the naked photos on a so-called “revenge porn” website.

“I just went completely into shock,” said Jacobs, who hired a lawyer and eventually changed her birth name from “Holli Thometz” to Holly Jacobs.

“This is cyber-rape,” Jacobs, now 30, told “It’s all about the guy having control over the woman and exploiting her in a sexual way — the same way real-life rape does that. It violates you over and over again.”

What came next was perhaps more shocking to Jacobs. Police in Miami, where she lived at the time, took no action. They told her that “because you are over 18 and you consented, technically they are his property and he can do whatever he wants with them,” she recalled.

Jacobs, a 2005 graduate of Boston College who managed to earn a Ph.D during her ordeal, channeled her pain into advocacy for women similarly victimized by ex-boyfriends, who — without their knowledge or consent — posted photos meant to be private in the most public and humiliating way. Jacobs created the website “End Revenge Porn” and formed the group Cyber Civil Rights Initiative (CCRI), under which she serves as CEO and executive director.

With the advancement of technology, millions of people — mostly teens and young adults — turn to “sexting” pornographic or inappropriate photos to their boyfriends or girlfriends, with little or no foresight into what may one day become of them.

“At this time, 49 states do little or nothing to stop malicious individuals from endangering lives and reputations by distributing sexually graphic pictures of people without their consent,” said Mary Anne Franks, a professor at University of Miami School of Law. “Both state and federal criminal laws are needed to prevent and address this form of sexual abuse.”

For Jacobs, the initial discovery of nude photos on a website called “” was only the beginning of her nightmare.

The young woman hired a lawyer, who wrote a letter to Jacobs’ ex-boyfriend, Tampa resident Ryan Seay, to “just kind of scare him.” The photos immediately came down, Jacobs said.

In November 2011, Jacobs began dating someone new, and posted a picture of the two on her Facebook page. Hours later, she was bombarded by emails from strangers saying, “There are pictures of you all over ‘revenge porn’ websites.”

“My material went viral within three days. It was on over 200 websites, with my full name, my e-mail address, the school I attended, and a link to where I worked,” said Jacobs, who at the time was a teaching assistant at Florida International University.

And then a chilling e-mail arrived in her inbox from a fake Yahoo e-mail address that was created using her name. The writer told her to “get in touch concerning your photos” and warned her that a “nice video” was awaiting distribution, she recalled.

“Have your boss and co-worker seen it?” the taunting e-mail read.

The sender wrote that if Jacobs did not respond by a certain time, he would upload the video, titled, ““Masturbation 201 by Professor Holli Thometz.” And he did, she said.

According to Jacobs, the video was an old Skype interaction between her and Seay, which was recorded without her knowledge.

In April 2013, Jacobs filed a civil lawsuit against Seay as well as websites and servers that posted the photos and personal information. The lawsuit claims that Seay and the other defendants violated her privacy by posting such photos and information without her consent. The complaint also seeks a court order prohibiting additional publication by the defendant, and to retrieve or destroy all the photos in Seay’s possession, Jacobs’ Miami-based attorney, Patrick McGeehan, told

Seay, 28, could not be reached for comment. He has reportedly claimed someone hacked into his computer and stole the photos from him. In an e-mail to, his attorney, Charles Arline, denied any wrongdoing by his client.

“At this time I can only relate that my client is eager to answer these charges and defend himself in the proper forum, i.e. the court system,” Arline wrote. “He adamantly disputes the allegations and is in no remote way affiliated with any type of revenge porn and has previously extended his support to Ms. Thometz or Ms Jacobs efforts.”

Click here to view the lawsuit  

“The laws have not kept up with technology, that’s the bottom line,” Jacobs said.

In New York, for example, such behavior would be criminal if the plaintiff could prove the video was secretly taken, according to legal sources.

“If a person was surreptitiously recorded or unaware that the video was being made, and the recording is then disseminated on one of these websites, this is a crime,” said Mark Bederow, a New York-based criminal defense attorney and former prosecutor. “In New York, posting a video made in such a manner would constitute Unlawful Surveillance in the Second Degree, which is a felony.”

“Even if the person was aware she was being recorded, dissemination of this material in a manner designed to humiliate may constitute aggravated harassment. Other states have similar statutes,” Bederow said.

But University of Maryland School of Law Professor Danielle Keats Citron notes that such dissemination would only be criminal if the defendant engaged in a “harassing course of conduct as an ongoing harassment campaign.”

“One posting, even two, as damaging as it will be, would not constitute a crime in New York and other states,” Citron said. “It can’t be an isolated event.”

New Jersey remains the only state that makes it a felony to share an individual’s nude images without that person’s consent.

Read the rest

Santa Cruz settles infringement dispute

Earlier this year when a New York Fashion Week catwalk featured imagery that looked strikingly similar to iconic Santa Cruz Skateboards graphics, social media lit up with skaters calling out fashion designer Jeremy Scott for poaching artwork from the brand’s famed father-and-son illustrators, Jim and Jimbo Phillips.The ensuing controversy — which, contrary to recent reports, never spilled over into the justice system — came to a close earlier last week as Santa Cruz’s parent company, NHS, Inc., announced an out-of-court settlement with Scott.

“I regret that certain pieces of my February 2013 Fall Winter fashion line incorporated imagery that was similar to images owned by NHS and Messrs. Phillips,” Scott said in a statement released by NHS. “I now recognize my mistake and out of respect to their work and their rights, the clothing and handbags at issue will not be produced or distributed.”

The American fashion designer also agreed to destroy the infringing apparel, according to NHS’s president and CEO, Bob Denike, who dispatched company representatives to witness the destruction of the clothing and handbags featuring Santa Cruz’s “Psychotic Eyes” and former pro skater Rob Roskopp’s monster graphics, among other popular skate illustrations from the 1980s.

“Anytime there’s someone out there infringing on our artwork and logos, it dilutes the strength of our intellectual property,” Denike told “This settlement is a statement for us that NHS protects its copyrights and trademarks. Our dealers, distributors and licensees can feel confident that we don’t [mess] around. We protect what we have, and they know it has integrity and it’s not getting watered down.”

Denike had no comment about whether monetary compensation was part of the settlement.

Santa Cruz settles infringement dispute – ESPN
copyright infringement news – Google News… Read the rest

Chicago Musician Sues Nicki Minaj Over Copyright Infringement

Nicki Minaj onstage at the 2013 BMI R&B/Hip-Hop Awards at Hammerstein Ballroom on August 22, 2013 in New York City. (Photo by Neilson Barnard/Getty Images for BMI)

A Chicago musician known for his painstakingly crafted electronic music filed a copyright lawsuit against pop star and wig model Nicki Minaj Tuesday. An attorney for Clive Tanaka filed a lawsuit in federal court in Chicago Tuesday claiming Minaj lifted liberally from the hooks in his 2011 song “Neu Chicago” for her 2012 hit “Starships.”

The suit names Minaj, producer RedOne (real name Nadir Khayat) and three songwriters credited with writing “Starship with Minaj: Carl Falk; Rami Yacoub; and Wayne Hector. Tanaka’s attorney Christopher Niro told the Chicago Tribune RedOne, Falk, Hector and Yacoub are Swedish citizens and may have heard “Neu Chicago” in television ad campaigns for a clothing retailer and a beverage company in that country. (Read the full lawsuit here.)

“We believe they are similar to the point that it is nearly impossible for it to be a coincidence,” Niro said.

Let’s see for ourselves, shall we?

Here’s Minaj’s “Starships”

Here’s Clive Tanaka’s “Neu Chicago”

Tanaka even put together a mashup of the two last year to highlight their similarities. “Neu Chicago” plays on the right channel and “Starships” on the left.

That’s over 12 minutes of my life I wasted listening to the two songs. While the two songs blend well together, proving copyright infringement may be tough.

In order to prove copyright infringement, the plaintiff must prove ownership of the copyright in the allegedly infringed work and copying of the work by the defendant. Assuming that the plaintiff is the proper owner, all that now needs to be proved is that the defendant copied the work. In a simple case, if the defendant admitted that they obtained a copy of the work and ran off copies of the work on a photocopier, this would be enough to find the defendant guilty of copyright infringement. This, however, is not the usual case, and there is rarely such solid proof of copying.

Because of this, courts have evolved a rule for finding copyright infringement when there is no proof of direct copying. Copying can be proven by showing both access to the work and substantial similarity of the allegedly infringing work to the copyrighted work. If the defendant can show there was no access to the work and, in fact, the work was created independently, there will be no copyright infringement even if the works appear to be an exact copy. Also, if the defendant knew about the work, but it is substantially different from the allegedly infringing work, there is no liability for copyright infringement.

Access to the work can be proved by showing that the defendant actually viewed and had knowledge of the copyrighted work or had a reasonable opportunity to view or have knowledge of the work. Again, it may be difficult to prove that the defendant actually saw the copyrighted work. Courts have found a “reasonable opportunity to view the work” where one employee of a corporation had possession of the work and another employee created the allegedly infringing work. Similarly, in a famous case, a song was found to be copied when it was a top ten hit; thus, the composer of the allegedly infringing song most likely heard the song on the radio.

Substantial similarity in the works is a highly fact-intensive inquiry and varies from case to case. Obviously, trivial similarities between the works will not be sufficient; on the other hand, two works need not be identical in order to find substantial similarity. The courts have developed several different tests to determine whether two works are substantially similar, with some of the tests applying to specific types of works, such as music, books, and motion pictures. In some of these tests, expert opinions are obtained. For example, in copyright infringement lawsuits involving musical works, testimony from a musicologist or a professional musician may be obtained to assist the court in determining whether two works are substantially similar.

Let’s ask you: Does Tanaka have a case here?

Chicago Musician Sues Nicki Minaj Over Copyright Infringement – Chicagoist
copyright infringement news – Google News… Read the rest

California’s Attempt to Avenge Revenge Porn

So your boyfriend or girlfriend broke up with you? Maybe they cheated on you or worse yet, told you that you weren’t the “one.” Now, in order to make them feel some semblance of the pain you felt, you think it’s a good idea to post sexual pictures you two shared with each other on the web. This might certainly accomplish the objective but be careful if you live in California, because you may have just committed a misdemeanor punishable by up to one year in jail.

California legislatures are currently discussing a bill that would make so-called “revenge porn” a crime. “Revenge Porn” is the act of posting or distributing nude/semi nude pictures of an individual without their consent. While it’s obvious that this type of posting and distributing causes emotional harm, it also has other consequences, like making it difficult to find a job. To make matters worse, the effects of revenge porn are amplified by websites dedicated solely to these kinds of posts! Talk about a bad breakup — now they go viral.

The problem is big enough that it’s starting to get noticed. California has drafted a bill in order to tackle the problem after New Jersey and Florida attempted to address the issue as well. The California version of the bill criminalizes the taking of a photograph of another “identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation or privacy, and subsequently distributing the image taken, with the intent to cause serious emotional distress.” In layman’s terms: You can’t distribute a revealing photo if the subject hasn’t given you permission. Although a good attempt at addressing a serious problem, the California statute goes too far and also doesn’t go far enough, leaving it open to criticisms that it is too strong, as First Amendment protectors will claim, and that it is too weak, as potential victims of revenge porn will argue.

The California statute as it stands has problematic First Amendment implications. In particular, many would argue that this type of “speech” is protected, and they could point some support from the Supreme Court, which gets pretty touchy (rightfully so) about free speech. In a very public case Snyder v. Phelps, the Supreme Court dismissed a lawsuit brought against the Westboro Baptist Church for anti-gay demonstrations at the funeral of an American veteran. Upholding the group’s right to protest, Chief Justice John Roberts wrote that although speech can “inflict great pain,” “we cannot react to that pain by punishing the speaker.” Similarly, it may argue that although posting revenge porn causes emotional distress, this is not enough of a reason to limit the speech.

There are also some serious practical problems with the language in the proposed bill, which may “chill” valuable speech — another red flag for our highest justices. Fear of legal ramification may stop someone from distributing media that could have a positive effect, such as revealing that a crime or impropriety has been committed (think adulterous behavior, a la Anthony Weiner). Although this type of dissemination wouldn’t be done in order to cause emotional distress, we can imagine someone being hesitant to distribute important photos for fear of breaking the law. Take another potential spillover effect: an actor or actress consents to having a pornographic video taken by a producer and then later decides they don’t want the video to be distributed. Then when the video is distributed, the victim can claim it was done to cause them emotional distress. Regardless of how much you are concerned about the chilling effect on the porn and tabloid industries, the Supreme Court will be.

Where the statue may go too far in one direction, it also ironically doesn’t go far enough in the other. For one, the statute only contemplates photos taken by the perpetrator. If someone were to send a significant other a personal pornographic photo, which was subsequently distributed, perhaps multiple times, was the law violated? I suspect this would be a gray area, as it would be difficult to place liability on the person who distributes the photo as the photo becomes more and more displaced from the original transmission. For example if Jake sends a photo to his girlfriend Bella who then forwards it to her best friend Ed without telling him the background, should Ed be held liable for distributing the picture?

And then there’s the problem of motive. There are many reasons, other than inflicting emotional distress that may lead someone to post a pornographic photo: bragging rights, compensation, or as a joke even. Distribution for these motives would not constitute a crime because the intent may not have been “to cause serious emotional distress,” but it could certainly still create similar emotional effects on a victim.

Lastly, the criterion of “emotional distress” does not take into consideration other kinds of harm that revenge porn may cause. A victim can be severely disadvantaged in getting a job after pornographic pictures have been distributed. Revenge porn may also have adverse reputational effects or even constitute harassment. Such repercussions may very well follow a victim for years.

We do, thankfully, have several torts (civil as opposed to criminal remedies) that could cover these kinds of effects. You can sue someone and recoup damages for “tortious interference of contract,” “infliction of emotional distress”, and even the tort of “false light” (defamation for a non-public figure). While it is tempting then to leave it to the civil system, that just won’t do either. Although victims of revenge porn can seek justice through the tort system, it requires money, time, and can be quite embarrassing. I suspect this is the reason that CA and NJ have contemplated making revenge porn a crime in the first place. Unfortunately, they have potentially overreached, exposing themselves to First Amendment infringement, and at the same time not reached far enough by creating loopholes around origin, motive, and effect.

Read the rest

Revenge porn law in California could pave way for rest of nation

A bill that would criminalize revenge porn — nude or sexual photos, generally of former wives or girlfriends, posted online by an angry ex — could pave the way for other states to adopt similar laws, putting perpetrators in jail for six months if convicted a first time, and up to a year for repeat violations. The bill, already approved by the California Senate, is expected to go to the state Assembly as soon as this week, despite concerns from some lawmakers and experts who fear it could curtail First Amendment rights.

“It’s traumatized real victims; it’s a growing problem,” California state Sen. Anthony Cannella, told NBC News. “Technology moves much faster than our laws,” said Cannella, a Republican, who authored the legislation. “When we identify a problem, it’s our responsibility to deal with it.”

If passed by the Assembly, SB 255 will go to Gov. Jerry Brown for approval. It’s not clear whether Brown will support it. “Generally, we do not comment on pending legislation,” Brown press spokesman Evan Westrup told NBC News.

One supporter with whom Cannella has been working is Holly Jacobs, a Florida woman who founded End Revenge Porn after her own nightmare with the issue began more than four years ago.

Like many other couples, Jacobs and her boyfriend had private photos of intimate moments — photos not meant for public consumption. After their breakup, Jacobs saw her photos plastered everywhere on the Web, including on Facebook and several revenge porn sites. Her email address was part of what was shared, “so I had harassing emails constantly coming in,” she told TODAY’s Matt Lauer in May. “My work location was posted up and there, so I was terrified. I was so afraid that someone would physically stalk me.”

In the era of instant uploads, a slimy sub-industry of sites have emerged that are dedicated solely to such “revenge porn” shots and videos. It has become a money-making “sport,” of which one of the most notorious players is Hunter Moore, who was under FBI investigation for his controversial site, Is Anyone Up.

Though the sites often include personal information about the victims, including names, email addresses and even links to their Facebook profiles, the sites themselves are protected from liability because of Section 230 of the federal Communications Decency Act, which says that websites and Internet service providers can be treated as a publisher for “any information provided by another information content provider.” With little legal recourse, these victims are left feeling helpless and humiliated.

Jacobs’ fear turned to anger, and she decided she would no longer be a victim. She filed criminal and civil charges against her ex. The ex, through his attorney, has denied the charges against him, contending he is just as much a victim as Jacobs, and that the reason the photos and video were shared is that his computer was hacked.

Those who might think, “Well, you shouldn’t have taken those photos … ” aren’t living in the real world of what has become, especially for a younger generation, a cultural-technological phenomenon as normal as tweeting and texting.

“It’s absolutely just a new version of victim blaming,” Jacobs said in May. “What I would say to victims when they hear that is, just hold on to that little voice inside of you that says, ‘This is not right.’ What’s happening to me is not OK, and there need to be laws in place against this.”

The California legislation, Jacobs told NBC News, “is so important because it has the potential to set a precedent for other states considering to criminalize revenge porn.”

Precedents and objections
The state that comes closest to doing that now is New Jersey, which since 2003 has had an invasion-of-privacy law aimed at video voyeurs, people who secretly videotape others naked or having sex without their consent, according to a spokesman for the Office of the Attorney General in that state.

That law was one of those used to prosecute Rutgers University student Dharun Ravi, found guilty last year after setting up a webcam to spy on his gay roommate, Tyler Clementi, in 2010. Ravi livestreamed the video and tweeted about his roommates’s activities. Clementi, 18, committed suicide after learning about the public humiliation.

“Legislators did not discuss the issue of ‘revenge porn’ in passing this law” in 2003, Peter Aseltine, a spokesman for the New Jersey attorney general’s office, told NBC News. “Nonetheless, the language of the statute is quite broad and arguably applies to allow prosecution of an individual in a ‘revenge porn’ situation.”

Other revenge porn law efforts could soon be underway in Texas, Wisconsin and Georgia, Jacobs said.

While most everyone will agree that the revenge porn practice is reprehensible, crafting legislation that doesn’t inadvertently restrict free speech is the challenge.

In Florida, where Jacobs lives, an attempt at a revenge porn law failed this year partly because of concerns the way the law was written could interfere with free speech. Jacobs cited another concern: a requirement that personal information, such as the victim’s name and email address, also be posted as part of the photos or videos shared.

“I’m sure the revenge porn posters would have easily found a way around this,” she told NBC News. “Our personal information is already posted when our faces are in these pictures.”

Florida State Sen. David Simmons and state Rep. Tom Goodson, both Republicans, plan to try again with a new bill with different wording next spring when the legislature is back in session.

Jeff Hermes, director of the Digital Media Law Project at the Berkman Center for Internet & Society at Harvard University, said a “balance needs to be struck properly,” and he is not sure the California law will do that.

“You need to be extraordinarily careful in criminalizing privacy law because of the risk you’re going to deter legitimate speech,” he told NBC News. “With the California bill, I don’t see an exemption here for material that’s legitimately newsworthy.”

Take for example, he said, “circumstances where photographs exist of a political candidate who has run their campaign on their squeaky-clean image,” but there are photographs of that candidate in a compromising position.… Read the rest

US court finds file-hosting service Hotfile paid users to commit copyright infringement

A U.S. federal court has found file-hosting website Hotfile liable for copyright infringement, according to movie industry body Motion Picture Association of America.The US District Court for the Southern District of Florida also held that Hotfile’s principal, Anton Titov, was personally liable for Hotfile’s infringement, MPAA said in an emailed statement Wednesday.

“This case marked the first time that a US court has ruled on whether so-called cyberlockers like Hotfile can be held liable for their infringing business practices,” it added.

The order was marked on online court records as “restricted/sealed until further notice.” The opinion will be made public by the court in about two weeks, after confidential and proprietary information has been redacted, MPAA said.

The court agreed with the movie studios’ complaint that Hotfile gave incentives to post copyrighted content.

Five U.S. movie studios filed a copyright infringement suit against Hotfile in 2011, alleging that the company paid incentives to those who uploaded popular files to the system, that were widely shared. Its affiliate program still offers payment “calculated based on a percentage of the total value of premium accounts purchased by users who download the affiliate’s uploaded files.”

The scheme gave incentives to users to upload popular copyright infringing content to lure users who would pay for premium accounts to access and download the files, according to the complaint by the studios. Hotfile offers downloads on a high-speed connection to holders of paid premium accounts, in contrast to slower download speeds and fewer downloads offered to free users.

“The more frequently the content is downloaded illegally, the more defendants pay the uploading user,” the complaint said. Hotfile was also charged with paying websites that hosted and promoted links to infringing content on its servers.

Outsoursed search

The file-sharing site did not provide a searchable index of the files available for download from its website, and instead relied on “third-party pirate link sites” to host, organize and promote URL links to Hotfile-hosted infringing content, according to the complaint.

In a filing to the court in the civil suit, Hotfile said it is in full compliance with the safe harbor provisions of the Digital Millennium Copyright Act. “Hotfile and Mr. Titov run a legitimate business that fully complies with (and, indeed, embraces) the United States’ copyright laws and the DMCA,” it said. The terms of service and an intellectual property and rights policy published on its website explicitly prohibited copyright infringement, it added.

The website said it removes access when notified about files that allegedly infringe copyright, and has provided copyright holders, including the five studios, the “unfettered ability to remove access to files by directly commanding Hotfile’s servers through special rightsholder accounts.”

Hotfile in Panama could not be immediately reached for comment.

US court finds file-hosting service Hotfile incentivized users to upload … – PCWorld
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Revenge porn should be a crime

Editor’s note: Danielle Keats Citron is the Lois K. Macht Research Professor and professor of law at the University of Maryland Francis King Carey School of Law. She is an affiliate scholar at the Stanford Center on Internet and Society and an affiliate fellow at the Yale Information Society Project. She is writing a book on online harassment, which will be published by Harvard University Press. Follow her on Twitter.

(CNN) — “Jane” allowed her ex-boyfriend to take her naked photograph because, he assured her, it would be for his eyes only. After their breakup, the man betrayed her trust.

On the revenge porn site UGotPosted, he uploaded her naked photo and contact information. Jane received calls, e-mails, and Facebook friend requests from hundreds of strangers, many of whom wanted sex.

After the site refused to take down the post and the anonymous calls and e-mails intensified, she turned to law enforcement. According to the officers, nothing could be done because her ex had not engaged in a harassing “course of conduct,” as required by criminal harassment law, and because he had not explicitly solicited others to stalk her.

Criminal law should have a role in deterring and punishing revenge porn. It’s not new that certain types of privacy invasions are crimes. Many states prohibit the nonconsensual taking of sexually explicit images — the disclosure of someone’s naked images should be criminalized as well.

But in all but one state, New Jersey, turning people into objects of pornography without their permission is legal. A single post, however, can go viral and ruin someone’s life.

Revenge porn and its ilk raise the risk of offline stalking and physical attack. Fear can be profound. Victims don’t feel safe leaving their homes. Jane, who is a nurse, did not go to work for days. As many victims have told me, they struggle especially with anxiety, and some suffer panic attacks. Revenge porn victims withdraw from online engagement, shutting down their social media profiles and blogs to prevent strangers from finding them online. They cannot participate fully in our networked age.

The professional costs of revenge porn are steep. Because searches of victims’ names display their naked images, they lose their jobs. Schools have fired teachers whose naked photos appeared on revenge porn sites. A government agency terminated a woman’s employment after a co-worker circulated her nude photograph to colleagues.

Victims may be unable to find work at all. According to a 2009 Microsoft study, more than 80% of employers rely on candidates’ online reputations as an employment screen. Common reasons for not interviewing and hiring applicants include concerns about their “lifestyle,” “inappropriate” online comments, and “unsuitable” photographs, videos, and information about them.

Recruiters don’t contact victims to see if they posted nude photos of themselves or if someone else did in violation of their trust. The simple but regrettable truth is that after consulting search results, employers don’t call revenge porn victims to schedule an interview or to extend offers. It’s just seen as good business to avoid hiring people whose search results would reflect poorly on them.

Revenge porn is a harmful form of bigotry and sexual harassment. It exposes victims’ sexuality in humiliating ways. Their naked photos appear on slut shaming sites. Once their naked images are exposed, anonymous strangers send e-mail messages that threaten rape. Some have said: “First I will rape you, then I’ll kill you.” Victims internalize these frightening and demeaning messages.

New Jersey is the only state to make it a felony to disclose a person’s nude or partially nude images without that person’s consent. The New Jersey statute is a helpful model for states like California that are considering proposals to criminalize revenge porn. Congress should amend the federal cyberstalking law, 18 U.S.C. § 2261A, to cover the use of any interactive computer service to produce or disclose a sexually graphic visual depiction of an individual without that individual’s consent.

What about First Amendment objections to legislative proposals to criminalize revenge porn? A narrowly crafted criminal statute like New Jersey’s can be reconciled with our commitment to free speech. First Amendment protections are less rigorous for purely private matters because the threat of liability would not risk chilling the meaningful exchange of ideas.

Listeners and speakers have no legitimate interest in nude photos or sex tapes published without the subjects’ permission. That online users can claim a prurient interest in viewing sexual images does not transform them into a matter of legitimate public concern. Nonconsensual pornography lacks First Amendment value as a historical matter, and could be understood as categorically unprotected as obscenity. Although the Court’s obscenity doctrine has developed along different lines with distinct justifications, nonconsensual pornography can be seen as part of obscenity’s long tradition of proscription.

Criminalizing revenge porn is a crucial step in protecting victims from real and profound harms to their physical, emotional, and financial health and safety. It would deter damaging privacy invasions and send the powerful message that posting someone’s most private moments, most often in a breach of their trust and without their permission, is unacceptable.

That lesson needs to be repeated early and often before online users, especially young people, think that shaming and terrorizing individuals is an acceptable practice. We need a “cyber civil rights” agenda to combat bigoted online abuse. The criminalization of nonconsensual disclosure of someone’s naked images is an important part of that agenda.

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‘Revenge porn’ should be a crime – CNN International
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