Why Aren’t “Hacked” Celebrities Filing Takedown Notices?

Writing today in Slate, Emily Bazelon complains that the law does not do enough to protect the privacy rights of celebrities whose accounts were illicitly “hacked” last weekend, resulting in the release of unauthorized nude photos the celebrities apparently took of themselves. Bazelon contrasts what she characterizes as the celebrities’ inability to remove their objectionable content from third-party Web sites with the much easier time that big movie studios have getting their works removed from YouTube. She writes:

Every day, movie and TV producers succeed in getting videos that have been posted without their consent taken down from major websites. Sure, you can still find pirated stuff if you look hard enough. But the big sites take down content once they know it’s been posted in violation of copyright. Because if they don’t, they’ll be sued—and no one will care if they defend the publication of stolen materials, in the name of free speech or otherwise.

Yet in the days since Jennifer Lawrence and other celebrities discovered that their nude images were stolen, and then posted without their consent on sites like Reddit and 4Chan, the stars can’t get the images taken down.

But that’s just not so. The law already provides precisely the same safeguards for the celebrities that it does for the movie and TV producers: as the creators (and copyright holders) of works posted online without their permission, they are statutorily entitled under 17 U.S.C. § 512(c) to insist that the hosting web sites remove, or disable access to, that content. Further legislation is unnecessary; all that is necessary for the injured parties to disable access to all the “hacked” photos is to follow the notice-and-takedown procedure specified in Section 512.

The problem is not, as Bazelon argues, that Section 230 of the Communications Decency Act (“CDA”) immunizes the web sites’ unauthorized display of the “hacked” photos. (To the contrary, those sites have apparently already removed some of the leaked content whose distribution violates federal law.) By its express terms [in paragraph (e)(2)], Section 230 provides absolutely no immunity to service providers accused of violating copyright law. Thus, the CDA interposes no bar to the use of Section 512’s notice-and-takedown regime under the present circumstances.

There are real issues raised by the “hacking” scandal, but the big ones are social/cultural, not legal. Posting content created by other people is already punishable both civilly and criminally, and the means to disable online access to such content are already in place. Whether it is fair to require individuals whose privacy has been invaded to avail themselves of their Section 512 rights in order to prevent further invasions is a separate question, but the problem is not, as Bazelon portrays it, the lack of appropriate legislation.

(Of course, Derek has already treated this issue, and responds presciently to the Section 230 objection, elsewhere. Happily for his analysis, the thornier IP problems involved in the repugnant “revenge porn” scenario, where the injured party and the copyright holder may not be the same person, are not present in the context of the hacked celebrity “selfies.”)

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