The answer lies in copyright law
Imagine having nude images of yourself — images you believed to be private — shared against your will with millions of people around the Internet. It’s a pretty terrible feeling, and it’s exactly what happened to dozens of celebrities, from Jennifer Lawrence to Kirstin Dunst, who fell victim to a hacker who accessed their private cloud storage accounts and raided their contents.
Some of the celebrities, like Lawrence, have pledged to go after whoever’s responsible for the privacy violation. While the hacker remains unidentified, the victims have at least one weapon to try and stop the images from spreading any further: Copyright law.
Here’s how that could work: In the United States, copyrights on photos are granted to whomever took the image. Since so many of the stolen images are reportedly selfies, that means the women in the images took the photos themselves — and, therefore, they get the copyright on them.
Some background: In 1998, Congress passed the Digital Millennium Copyright Act, or DMCA, which toughened penalties for online copyright violators. Crucially, the DMCA introduced what’s called a “Safe Harbor” provision for online platforms, like Facebook, YouTube, Reddit and others (though they weren’t around at the time). The Safe Harbor deal is this: Sites like YouTube don’t need to pre-check the content their users upload for copyright violations, but they do have to respond to what’s called a takedown notice. Copyright holders can file those notices to websites they believe are illegally hosting their copyrighted content, and the Facebooks, YouTubes and Reddits of the world then have to go and see if the copyright holder’s claim is legit — and if it is, they have to ditch the content.
Takedown notices have gotten increasingly popular over the last four years; people are now filing millions more to Google alone compared to just a few years ago, for example. Such notices are “very effective,” said Aram Sinnreich, an assistant professor at Rutgers University’s School of Communication and Information, “because otherwise the sites can be found as contributorily liable to copyright infringement, and that can run into the millions of dollars.”
So what Jennifer Lawrence, Kate Upton, Kirsten Dunst or any of the other hacking victims could do is file a DMCA takedown notice while they fill out the paperwork for a formal copyright on their photos, assuming they took the images of themselves. If their takedown notices are ignored, they can then sue the sites in question for copyright violation.
Such a move could be a “smart strategy,” said Danielle Citron, a professor of law at the University of Maryland who’s working on a book about online hate crimes. But fighting this fire through DMCA is akin to playing digital whack-a-mole: Knock the images off one site that was hosting them, and they’ll appear on another. “[The victims] might be outpaced by the scale at which this stuff spreads,” Citron added.
DMCA takedowns have other weaknesses, too: Sites hosted in countries with less stringent copyright laws won’t feel the same pressure to respond to them, Sinnreich said. So the celebrities probably won’t have any luck getting their private images off websites hosted in Cambodia, for example, a country that’s not party to the international treaty on which the DMCA is based. And the copyright strategy won’t work for the women who didn’t take the photos and can’t get the copyright from whoever did.
Still, Citron believes the incident is an opportunity to raise awareness about women having their private images spread widely around the Internet against their will, which happens daily but doesn’t always grab headlines.
“This is the perfect example of a case in which we should grab the public’s attention,” said Citron. “I’ve been writing about this since 2007. And nude photos are just one form of online harassment, and everyone just kind of shrugs their shoulders and blame the victims, ‘you stupidly shared it,’ or ‘you got hacked,’ or ‘you shouldn’t have been taking these photos in the first place.’ And now the cultural consensus is . . . we’re not shrugging our shoulders, and we think this is a really bad thing. So I think this is a terrific moment in which we’re getting people to really see the problem for what it is.”