Derek Bambauer, Exposed
Comment by: Collete Vogele
Published version available here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2315583
Workshop draft abstract:
Ubiquitous recording capabilities via smartphones and Internet distribution have given rise to a disturbing trend: the unconsented distribution of images and videos that capture people nude or engaged in intimate activity. Current law may permit recourse against those who initially distribute this content, but immunity for intermediaries under 47 U.S.C. 230 generally permits the material to remain in circulation. This Article proposes a solution to this problem grounded in intellectual property doctrine. It first describes the problem, and advances both utilitarian and deontological theories of harm to justify regulatory intervention. Next, it proposes a civil IP-based regime (sounding either in copyright’s moral rights doctrine, or trademark law) that provides for injunctive and monetary relief against initial distributors, and that establishes a notice-and-takedown system for intermediaries, similar to that of the Digital Millennium Copyright Act. Written consent by subjects of the photos / videos would operate as an absolute defense, as would newsworthy use or distribution. Lastly, the statute examines potential doctrinal difficulties under the Copyright Act and the First Amendment, and analyzes why the proposal traverses both concerns.