Today we testified on Michigan SB 524 and 525, which criminalizes “revenge porn” in the State of Michigan. Attorney Eric Misterovich made the following comments:
My name is Eric Misterovich and I am an intellectual property and Internet lawyer and a partner in Revision Legal. My office is located in St. Joseph, Michigan and I am honored to be here today.
My comments will focus on three main points. First, how I became involved in this area, second, my experiences working with victims of revenge porn, and third, the current options individuals have to combat revenge porn.
In my field of practice as an intellectual property attorney, I am often called on to resolve disputes about copyrights. By way of background, a copyright is a form of intellectual property law that prevents others from reproducing an author’s work of art without permission. For example, if I am in St. Joseph and take a picture of the lighthouse, I have a copyright in that specific picture. It doesn’t matter that others have taken that picture too. The moment my picture is fixed, I am the only one permitted to reproduced or display my picture.
Because we often deal with rights holders of photos, and because we have a background helping online business through the maze of federal rules and regulations governing business on the Internet, we naturally received calls from people with copyright issues arising from the display of sexually explicit photos online.
We have received calls from women all over the country, including many from Michigan, asking for help removing photos from the Internet. Almost all of these requests follow the same script: ex-boyfriend or ex-husband is posting the photos and the website isn’t responding to her complaints.
Before addressing any legal issues, I want to focus on this initial phone call. It is difficult to imagine the level of stress, embarrassment, and uncertainty these women face when they pick up the phone, call an attorney they have never met, and have to explain what is going on. Not only do they have to explain it, but as part of our investigation, they need to provide us a link to exactly what they do not want people seeing.
If they have the strength to make this call, the reality is their options are very limited. Remember that photo of the lighthouse? If I took that picture and found it posted on a website without my permission, legal remedies exist to have that photo “taken down.” This is part of a federal law called the Digital Millennium Copyright Act or DMCA for short.
As a result, when a revenge porn victim took the picture at issue, we can submit a DMCA takedown request to have the picture removed from the website. The downside: this does not stop the poster from uploading the photo to another website. Also many sites, including Google, keep detailed records of take down requests and make those records public. That means a search result for a person’s name may not show the photo, but it will show that a summary of the takedown request. Put simply, the problem doesn’t just go away even if the picture has been removed.
However, the majority of calls come from women that did not take the photo themselves. That means they do not own the copyright in the image and they do not have the ability to use DMCA procedures to remove the photo from the Internet. These people are in a much different situation.
Instead, they are left with two options: 1) sue, or at least threaten to sue, the individual posting the photo in hopes that person will remove the image or 2) plead with the website owner to have the photo removed
Suing the individual taking the photo is extremely difficult, mostly because of the cost of civil litigation. Proving emotional distress damages of the posting of an online photo will be difficult to establish or prove. They would be best established with the testimony of an expert witness, only raising the cost of litigation.
Dealing with the website directly, however, is usually even less helpful. These websites often demand payment of thousands of dollars to remove a single photo. This is nothing short of extortion.
People come to me for help when they are faced with this situation. But too often, I am forced to tell them I cannot do anything to help. I firmly believe the laws need to adapt to this reality, although I acknowledge the solution is not an easy given our Constitutional protection of free speech.
In conclusion, victims of revenge porn have surprisingly few available remedies for relief. And if that person does not hold a copyright in the photo, or is unwilling or unable to pay the fee charged by the website to remove the image, they have no options at all.
I applaud the sponsors of these bills for addressing this issue and believe something needs to be done to give revenge porn victims options to protect their reputation, identity, and privacy.
I encourage the committee and Legislature to continue to debate this matter and all available legislative changes, including creating a civil cause of action, to bring the law up to speed with today’s reality.