Should it be illegal to operate a website that hosts user-generated content, some of which is illegal, if you take reasonable steps to remove the illegal content when informed of its existence?
The answer is pretty clearly "no." But this position becomes more difficult to defend when the entire premise of the website is based on illegal content. Something like e.g. if YouTube was originally named ShareMusicIllegally.com.
So this is a very unusual situation. We have a business built on a concept which wasn't illegal until recently. Did he continue to try to operate it in California after the bill was signed into law?
One position to take is "Who cares. This is a good thing."
That may be true, but remember that if you have the right to host whatever legal content you wish, then the first step toward losing that right is to not defend it. Sometimes that requires defending scoundrels.
Honestly, I don't know what to think. Maybe this isn't an instance of that sort of situation. On one hand, there are concerns about civil liberties in regards to webhosting. On the other hand, this website was clearly vile.
What does everyone think about how this has played out? Businessman builds a morally suspect business; business is outlawed; businessman is fined $250k. Did he deserve it? Perhaps it was karma. Is it a worrying trend that website operators are becoming increasingly culpable for user content? What if there were a subreddit dedicated to "revenge porn"? Should Reddit be liable for damages under California law, and should the subreddit be banned even though there are far worse subreddits, both from a moral and legal standpoint? So many questions (though most of it is conjecture, and hence may not be very useful).
EDIT: It turns out that the $250k fine wasn't due to user generated content, but rather because the website owner defamed someone by calling them a pedophile. So maybe the rights of website owners aren't even in question here. Was there any legal action taken against this "revenge porn" website owner stemming from the website after it was made illegal in Oct 2013?
It is the latest legal setback for Mr Moore, who was ordered in March to pay $250,000 (£170,000) in damages for defamation resulting from a civil lawsuit.
I may have misunderstood, but didn't this $250k fine originate largely due to the UGC on the website?
AFAIK users didn't actually upload content to the site. They submitted it and then Mr Moore or someone else posted it. I'm also pretty sure he wouldn't honour take down requests.
Is there a large chasm between "upload content" and "submit [content]"?
Is the difference in the latter case just that someone clicks "ok, post this"? I don't think that a quality-review (or lesser, a mechanism to queue and release content to the site slowly over time) turns user-generated-content into site-generated-content.
If Youtube did a quality review, it would still be UGC.
If Youtube did a post-facto quality review (to remove copyrighted music), it would still be UGC.
...
Not honoring takedown requests is a different matter, and just sounds like a dumb call.
Just in general, the difference between having an editorial gatekeeper, and not, is that it gives the site operator actual knowledge of what's being posted. An example of how that would matter is the DMCA safe harbor, 17 U.S.C. 512(c)(1)(A), which requires the service provider not to be aware of facts or circumstances from which infringing activity is apparent.[1] But "how much did you know, when?" is a crucial question basically any time we hold someone responsible for something under the law, so "we knew exactly what was being posted to our site the whole time" is pretty different from "we couldn't possibly keep track of everything that was being posted to our site."
It has done in the past, at least if the person doing the posting added their own editorial comments as I believe Hunter Moore did. However this issue hasn't come up so far because the main lawyer pursuing most of the civil cases, Marc Randazza, strongly believes this shouldn't affect section 230 immunity.
The distinction is very important. The intent of Safe Harbor provisions is not to allow sites to blithely host infringing without possibility of reprisal as long as they take it down when asked. The intent is to relieve sites of the unreasonable burden of both being aware of and policing everything their users do — to allow them to act as sort of a "dumb pipe". If you have personal knowledge of infringing content, you are still expected to take it down even without a DMCA notice — and it is certainly not OK for you to post infringing content yourself.
(Standard IANAL caveats apply of course. I think I have a reasonably good layman's understanding of this stuff since my work touches on this stuff, but you should talk to your lawyer if you want concrete advice.)
I don't think his website would have existed if he had honoured takedown requests. The entire premise was that these pictures are hosted without permission (and according to the Jezebel article about 90% were). If he honoured DMCA requests then that would become widely known pretty quickly. Part of the point of the site was to publicly humiliate the women, so if they had any easy way to get rid of the pictures, it wouldn't have had the same impact.
'Is there a large chasm between "upload content" and "submit [content]"?'
There would have to be the most enormous chasm, because the latter includes every publication that uses the work of freelancers, which is pretty much every newspaper and magazine, and their online equivalents, everywhere.
For values of "anti bullying charity" equal to "company making money from online extortion", but yeah. (Their website Cheaterville has ads for services offering to remove "slanderous" and "defamatory" content from Cheaterville for the fee of $500 per entry. They handle all their advertising inhouse, so at the very least they're entirely aware of where their advertising income's coming from. In fact, at one point those were the only external ads on the entire network of sites and there was no information on how to advertise with them, so they'd obviously cut some kind of private deal with the companies offering these services.)
> Is it a worrying trend that website operators are becoming increasingly culpable for user content?
Well, let's be clear here. He didn't build a business that operated around hosting arbitrary images, that happened to be adopted by bad people for bad purposes. He was a bad person himself, who built a bad website, to assist other bad people. These are two very different things.
I mean, I understand how you could imagine some other website, a neutral website, that was unintentionally adopted by bad people for bad purposes, and that other website could do the same sort of damage, unintentionally, that this website did to its victims, intentionally, and that hypothetical situation is sort of similar to this one if you look upsidedown and squint.
But in the moral code of most people (for example, mine) and for that matter the US legal system, it's important not just that you have bad effects, but that you have a bad intent. This is why, for example, murder is different than manslaughter. In both cases somebody is dead because of your actions, but in only one case did you form a specific intent to kill another person. (And manslaughter is, for the record, not "no intent", but it is a lesser kind of intent, like firing a gun into a building without regard for whether or not it is occupied. It's a bad intent, just not bad enough to be murder.)
I think where hackers get hung up is in some sort of weird Net Neutrality-ish argument where any packet is as good as any other packet, and so a packet that carries revenge porn is just as legitimate as a packet that carries cat videos. Packets are neither good or bad but just are and all packets have the same legitimate claim on arriving to their destination as any other. And if you are designing a router, that sounds like a very sound principle to me.
But in the courtroom, we are not prosecuting packets, but prosecuting people. And people are more than just a function of the packets they send. They have motives, they have intents. They construct a conscious plan to do good or to do evil. And that is how they are judged.
This is going to sound kind of ridiculous, but I think a flaw with this viewpoint is that you're saying that a "revenge porn" site is inherently bad with bad effects and bad intent.
For the sake of argument, I can imagine a scenario where an upcoming adult model submits "revenge" pictures that she took herself as a form of free publicity, or another popular revenge site that is actually run by an adult modeling company where all content is actually generated by them under the facade of being "revenge porn". Should this content be illegal? Should the site that the model submitted to be fined? What if all documentation was destroyed in the case of the second site, but it was just the state going after it? Do you trust a court of law to make these decisions accurately?
These aren't easy questions, and this is why I have trouble with going after businesses that are morally suspect. It always seems to set a dangerous precedent for businesses that are on the edge or on the "moral" side of things.
Unfortunately, we have not understood each other. You are saying things like
> Should this content be illegal?
Meanwhile I'm saying things like
> it's important not just that you have bad effects, but that you have a bad intent
and
> we are not prosecuting packets, but prosecuting people
Let me try and use your terminology. There is no such thing as illegal content. There is content that is produced in the course of a criminal act. But it isn't the content that is illegal, it's the act.
I think the rest of your comment follows from that misunderstanding of my premise, but if not, let me know, and I can respond to the actual merits.
> On the other hand, this website was clearly vile.
"The trouble with fighting for human freedom is that one spends most of one's time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all."
Websites should be free to host user generated content provided they're not intending to host illegal content. Taking reasonable steps to remove illegal content is only part of that. If the illegal content hosting is the public premise of the site, then that's proof of intent. For me, the distinction is pretty clear. Reddit doesn't allow subreddits devoted to child porn, for example, and I think that's reasonable.
I don't think laws should be applied retroactively, but normally they aren't, and that certainly isn't what happened in this case. The fine was related to a civil case, and the criminal proceedings seem to be related to hacking activity.
Bear in mind that although revenge porn wasn't covered by criminal law until recently, it was always covered by civil law. These photographs count as copyrighted content. According to the Jezebel article, the website owner refused to take down photos even when issued with a DMCA takedown notices. As I understand it, that means the owner was breaking civil law. So it's not really fair to paint him as a law abiding but sketchy businessman. He broke the law, but he got away with it by targeting vulnerable people who didn't sue him because it would have been public, embarrassing and expensive.
Revenge porn isn't a good thing, on balance. The freedom involved isn't worth the damage done, so I'd be happy for it to be illegal to host. However legislation on this has to be very carefully written to only target revenge porn. You wouldn't want someone getting put in jail for torrenting an amateur porn movie.
This is but a handful of data points, but a lot of the rumblings I've heard about this whole trend have been coming from lawyers who take a specific interest in protecting free speech. This includes Marc Randazza, who was mentioned in the article. This also includes Ken White at Popehat, who has an entire tag devoted to IsAnybodyDown (a knockoff of Moore's site that added more crimes into the bargain). There's definite danger of a badly-drafted law going over the line, but it seems that it's possible to prevent the stalker-enabling crap on these sites without damaging actual speech.
Marc Randazza's gone further than that, he's actually argued in the past that sites should allowed to actively encourage people to post particular kinds of actionable and non-protected speech, specificially defamatory posts.[1]
I think you miss the point. It may be illegal but nonetheless someone can upload your personal information to Flickr or a Google Hangout or a Facebook page.
The question is whether that makes Facebook, say, culpable.
Safe-harbour laws apply in USA, I don't think we have anything similar in my country.
> That may be true, but remember that if you have the right to host whatever legal content you wish, then the first step toward losing that right is to not defend it. Sometimes that requires defending scoundrels.
Making a UGC revenge porn site doesn't need to be defended by anyone. I feel like your comment is a troll. I shouldn't be arguing with a troll and I expect HN to not have them. I'll stop at that.
FWIW, I think you're being unduly harsh. I wonder whether you misunderstood a valid point made by sillysaurus2, specifically that there is an ends-vs-means issue here.
I doubt anyone reading this comment would condone the operation of such a nasty site or have much sympathy for someone who ran one. Nevertheless, it is important to be clear about why we feel such behaviour is morally wrong and should be penalised. What principle(s) are being violated here? Our legal systems in the West tend to depend heavily on precedents, so the reasoning behind a judgement is in a very practical sense as important as the decision itself.
Personally, I think much of this issue could be dealt with very clearly. I believe stronger privacy laws are long overdue in many contexts, and as one example, criminalising the collection or distribution of intimate imagery of another person without their explicit consent is appropriate. Combine that with the well-established legal concepts of attempting to commit a crime, being an accomplice, and incitement, and situations like revenge porn sites are black and white criminal offences as far as the original uploaders are concerned, and the usual legal means should be available to investigate sources and track down the offenders.
There is a second issue here, which is more what I think sillysaurus2 was going after: should a site that hosts user-supplied content have any responsibility for the nature of that content? I don't think the answer to this is "pretty clearly no" in the way the GP post described, because one could certainly make a reasonable, logical argument for an alternative model where if you're going to publish potentially damaging information to a wide audience then you have some sort of due diligence obligation first.
However, I don't personally think that would be the best model, because it would impose severe and possibly prohibitive burdens on many beneficial activities. I prefer a "common carrier" model, where merely conveying someone else's information does not in itself incur any liability if the service doing it has no knowledge of or control over that information. However, the rules about aiding and abetting/incitement should also apply, so if you run a site promoting illegal behaviour or you knowingly allow your site to be used for illegal activities without taking reasonable steps to try to prevent it, you're on the hook as well. Again, this makes operating a dedicated revenge porn site a black and white offence (actually, many black and white offences, for which the penalty should IMHO be correspondingly severe) but without necessarily imposing burdens on modern communications networks that would be harmful to the generally valuable function they serve.
> There is a second issue here, which is more what I think sillysaurus2 was going after: should a site that hosts user-supplied content have any responsibility for the nature of that content?
When it's editorially uploaded, as it is here? Sure should.
>Making a UGC revenge porn site doesn't need to be defended by anyone.
OP isn't specifically defending revenge porn sites in general, but rather pondering the ramifications of user generated content in general (which, to me, seems off-base as the fact the content came from centrally organized hacking seems to be the key issue).
> But this position becomes more difficult to defend when the entire premise of the website is based on illegal content. Something like e.g. if YouTube was originally named ShareMusicIllegally.com.
Isn't this basically GrooveShark's business model?
"if you take reasonable steps to remove the illegal content when informed of its existence?"
In this case, no steps were taken - though some claimed he was willing to remove content "for a fee". Usually, though, requesting content removal got you front page publicity, and the site sharing your content further with other similar sites.
"if you have the right to host whatever legal content you wish"
Said legal content is actually of fairly dubious legality when you pay someone to hack email accounts to get some of it.
That may be true, but remember that if you have the right to host whatever legal content you wish, then the first step toward losing that right is to not defend it. Sometimes that requires defending scoundrels.
In my opinion, this is one area where the US legal system goes south. There must be a way to maintain people's legitimate right to freedom of speech that does not involve defending clearly scandalous behavior. I think people too easily buy into the lawyer's argument on this one.
It's a slippery slope. If you allow the government/courts to dictate what kinds of speech is "bad", then you are placing faith in the system that nothing not-bad will ever be seen as bad by the government/courts. The cost/risk of potentially losing freedom is perceived to be worse than stopping a few assholes saying bad things (which they probably will anyways.)
I don't see this as a free speech issue. If you want to put a website with pictures of yourself naked, that's fine by me. You do not get to make that decision on my behalf.
That doesn't make it not a free speech issue. It is a free speech issue but one that we come down on the restricted speech side of things.
It is just that it one of the issues that illustrates that some limits on free speech are appropriate and correct. Once that is acknowledged the tricky discussion of where that line should be and how it should enforced come into play.
Serious question. If you consent today to let me take pictures of you nude... Don't I own the copyright of those pictures? Now, presumably if you and I were dating your consent would be very casual... I'd say, "Hey, mind if I snap some photos" and you'd say, "Go right ahead"... Because I'm quite charming.
A year later I still have these photos and we're not dating any longer. Do I own copyright on photos as the photographer? How far does your casual consent go? Do I need formal consent saying I can reproduce them?
A photo journalist will take a photo of a couple in the park as a child plays in the fountain behind them and use it in the paper the next day. What consent do they need to get from those being photographed?
It just all feels very fuzzy. Presumably most of the nude pictures are taken by someone other than the subject of the photos... meaning the photographer owns the copyright.. I'd think.
Anyone have more info on how this actually plays out?
According to the Jezebel article and wikipedia most revenge porn photos are selfies or photoshops of stolen non-nude pictures. In which case copyright law would apply.
However, to answer your question, you do own the copyright of a photo you take (unless it is a work for hire) even if you take it without permission. The requirement to get permission isn't related to copyright, it's related to the right to privacy. People have sued for damages over revenge porn violating their privacy rights.
http://www.scribd.com/doc/138909420/Revenge-Porn-Complaint-H...
If you think in terms of rights to privacy, then it becomes a lot less fuzzy. A child playing in a public place has no expectation of privacy regarding a photograph being taken and put in a newspaper. When someone lets a lover take photographs of them naked there is an implicit expectation that those photos will remain private between them. It would be hard for the photographer to argue that there was no reasonable expectation of privacy when the purpose of distributing these photographs is to get revenge.
I believe that the photographer owns the copyright.
There might however be obligations owed by the photographer to the model in such a scenario. I imagine that it could be deemed a 'breach of confidence'[1] and there may be specific privacy laws in some jurisdictions.
Also for this specific case of nude pictures I imagine you could quite quickly get into harassment/cyberstalking territory.
The law surrounding the intersection of copyright, photography, and the internet (with user generated content and Safe Harbour thrown in for good measure) is indeed fuzzy. Honestly, I don't know whether there exists any hard and fast rules per se. When you have so many laws together and sometimes in conflict with one another... I don't know. It's difficult.
I don't think it's that fuzzy, because even if you gave consent at one point to be photographed naked, that doesn't mean that the person having access to the photos can do anything they want with them. I mean it's one thing to send a nude pic in a sext and it's another to upload the pic to the internet with all your personal information.
But... Isn't this why it's legal for "Topless sunbathing photo of celebrity" to show up in the enquirer? They were topless in a public area (Sunbathing on a boat, for instance) and a photographer snapped a photo?
I'm just trying to play the other side of the coin here. It's really unclear to me if revenge porn sites are illegal or just a really asshole thing to do.
Also, In the example you're using... someone sent a sext and that means they were the original photographer, so they own the copyright. It sounds like there are two different types of photos here.
I took a photo of you because you said I could - I own the copyright and can reproduce.
You took a photo of yourself and sent it to me - You're the original photographer, I have no rights to the photo and can't share or reproduce.
In general, copyright belongs to the photographer. The person in the photo might have image/personality rights, depending on the jurisdiction (there's no Berne Convention on image rights) - in the US, the law varies state by state.
Which means that if you're going to have naked pictures taken, it's best to do selfies than having someone take it for you :)
IIRC the rationalization he used was that the person who uploaded the photos, not the subject, was the copyright holder because they were the photographer, thus there was no copyright infringement. I don't know how he verified that, if at all.
Now, hacking into email accounts and stealing photos is another matter...
Let's not pretend that he cared at all about rationalization. A request to take down a picture that you clearly owned copyright on (i.e. camera and mirror) would usually result in you being ridiculed on the front page of the site, with requests to other users to find more photos of you, where you lived and worked and to harass you.
One interesting angle some people have taken in the absence of RP-specific laws is to make copyright claims (since a lot of the pictures are either outright stolen, or self-taken and then later uploaded by angry exes)
Good god people, read the lead of the article. This isn't going after him for hosting UGC, this is going after him for cracking into people's computers, stealing their personal photos, then publishing them online.
This is a question of theft and unlawful entry, not free speech.
> Hunter Moore, 27, and Charles Evens, 24, face charges including conspiracy, unauthorized access to a protected computer to obtain information and aggravated identity theft.
Great link! Only five minutes long, yet very interesting to hear the interactions between the two.
I especially enjoyed hearing the interviewer begrudgingly admit that it wasn't just women but also men on the site. He (Garfield) tries desperately to paint Moore as pure evil in every way, but is repeatedly forced to admit that Moore's actions are legal and in line with values of our country's laws (er, our laws until October 2013).
Legal does not mean good or right, of course. The guy is still a complete scumbag, emotionally broken at some point in his early development I imagine.
> emotionally broken at some point in his early development
Yeah, that was my first thought when I saw him interviewed. He had no empathy at all. He basically admitted he ran a shady business that monetises peoples' misfortunes, but, hey, if he didn't someone else would. As if that justifies it, somehow.
I read this before hearing the 5 min interview, I expected a totally different personality or even voice. He sounds a lot more calm and non threatening than what the women experienced ... weird.
This article seems pretty concluded. For one, it doesn't seem like they are charging anyone for the revenge porn site, rather they are charging him as an accomplice in "hacking" peoples emails. Worse yet, they then bring in the $250,000 fine imposed by the court for defamation and that has nothing (or seemingly) nothing to do with the current case at all.
In other words... what the hell is this article about?
IIRC, for years he actually used to make videos ridiculing girls who tried to get their pictures taken down and admitted to ignoring all takedown requests publicly so I'm surprised he lasted this long with the nature of what he was doing.
Also do a quick search for his name and 'anderson' he had an interview on anderson cooper that just makes him look and sound like an actual child.
I watched it. Made me think that this site serves the potentially positive purpose of showing that sending nude pictures to people is generally a bad idea. By extension, people will then view "trusting the interwebs" with private information as generally a bad idea as well.
Either way, he's a scumbag and the site is terrible, but it's an interesting social experiment.
This sets a dangerous precedent. Soon there will be laws written that you cannot criticize the policies of the federal government on a website. And so on. I would gladly defend this guy, even if he is a scumbag.
We don't know what really happened yet. "Hacking" someone's email can mean a lot of things. CFAA should only apply if there was an intrusion of some sort through an attack vector of the system, not if the mailbox owner voluntarily shared login info.
The answer is pretty clearly "no." But this position becomes more difficult to defend when the entire premise of the website is based on illegal content. Something like e.g. if YouTube was originally named ShareMusicIllegally.com.
Actually, at this point in writing my comment, I checked my facts. It turns out "revenge porn" wasn't illegal until Oct 2013, and then only in California. http://www.cbsnews.com/news/revenge-porn-banned-in-californi...
So this is a very unusual situation. We have a business built on a concept which wasn't illegal until recently. Did he continue to try to operate it in California after the bill was signed into law?
One position to take is "Who cares. This is a good thing."
That may be true, but remember that if you have the right to host whatever legal content you wish, then the first step toward losing that right is to not defend it. Sometimes that requires defending scoundrels.
Honestly, I don't know what to think. Maybe this isn't an instance of that sort of situation. On one hand, there are concerns about civil liberties in regards to webhosting. On the other hand, this website was clearly vile.
What does everyone think about how this has played out? Businessman builds a morally suspect business; business is outlawed; businessman is fined $250k. Did he deserve it? Perhaps it was karma. Is it a worrying trend that website operators are becoming increasingly culpable for user content? What if there were a subreddit dedicated to "revenge porn"? Should Reddit be liable for damages under California law, and should the subreddit be banned even though there are far worse subreddits, both from a moral and legal standpoint? So many questions (though most of it is conjecture, and hence may not be very useful).
EDIT: It turns out that the $250k fine wasn't due to user generated content, but rather because the website owner defamed someone by calling them a pedophile. So maybe the rights of website owners aren't even in question here. Was there any legal action taken against this "revenge porn" website owner stemming from the website after it was made illegal in Oct 2013?