Why You Can’t Punch a Boxer in the Face When He Asks You for Directions: Consent, Context, and Humanity

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35 Responses

  1. AndyK says:

    This seems to confuse tort law with property law. The scope of consent in the boxer case is relevant to defining whether otherwise tortious conduct is actually welcome. But unless you are calling for overturning all of property law and stating that women are simply incapable of making an educated transfer of title (or withhold certain rights), the latter seems like a case where consent isn’t relevant.

  2. AndyK says:

    Frankly, this is a case where the criminal law actually has more work to do. This isn’t a consent issue or a property issue, this is an issue of conduct that can simply be criminalized.

  3. Paul Gowder says:

    Um. Andy, seriously?
    1. Sharing of an image is not the same thing as transferring some kind of title, especially not to use the property without restraints (if it were, just think of the conniption fit the media industry would have)

    2. And do you seriously think that A can’t commit a tort against B using “property” that B transferred to A?

  4. prometheefeu says:

    An actor may consent to being called a moron as part of a play. That does not mean he has consented to you called him a moron in a blog post. And yet, you are free to do so under the law. In fact under certain cirsumstances, nobody would blame you for doing so.

    The absence of consent does not always create a harm which society should prevent and the law is not always the right way to prevent such a harm.

  5. prometheefeu says:

    My comment above was not very specific. Let me ask a question. Let’s say i give a friend a picture of me, passed out, drunk. Such a picture could be very harmful to me. If my now ex-friend posts such a picture of me on a hypothetical revenge-drunk-pics sites, should this be treated identically to revenge porn? If not, why not?

  6. Paul Gowder says:

    Prometheefru: no, it shouldn’t be treated the same. Turning someone into pornography, sexually exploiting them, is not the same thing as making fun of their drunkenness. Seriously?

  7. AndyK, a “transfer of title” for a photograph would require a signed writing. See 17 U.S.C. ss. 202 & 204(a).

  8. TJ says:

    Paul, I find your response profoundly unhelpful. Nobody thinks that revenge drunken pictures is the same as revenge porn. The questions being posed, quite reasonably, are whether we can identify and agree on a principle for why not; what legal, ethical, and social consequences, if we can identify and agree on a principle to explain the difference, should follow; and whether the principle, if identified and agreed upon, is administerable by the legal system.

    What prometheefeu did is not different from what every judge does in posing a hypothetical at oral argument, or a law professor hypothetical in class. It is profoundly unhelpful to answer, basically, “They.Are.Just.Different.” It is even more unhelpful that your response seems to have the tenor of demanding the inquiry be shut down without further exploration, a la: “Seriously? How DARE you ask that!”

  9. Paul Gowder says:

    TJ, it’s a pathology of lawyers to demand some kind of abstract principle to capture intuitively obvious distinctions on which we (as you acknowledge) we all agree. The distinctions are given by longstanding features of our social lives that don’t neatly reduce to deductive rules, but to social meanings.

  10. Harodotus says:

    First off I think the sharing of revenge pics a dishonorable and despicable act that should be prohibited by some specific law that has yet to be passed.

    However, working with what laws we have right now, I think this more a matter of gift law and the inability to bind others to contracts (written, verbal, on even contextual) without their consent.

    If I go up to a homeless person and give them $10 and then walk away, he can spend that money on anything he desires.

    If I come back later and say “you must that spend $10 on food”, is he bound by a verbal contract to actually buy food and not be able spend it on a beer? I don’t think so – he is free to spend it in any manner he desires. I can’t compel his behaviour without his consent.

    There might be a case for a contract if i asked beforehand “if i give you $10, will you agree to only buy some food for yourself with it?” Now it would be more case for compensation for services.

    Now if i give a naked photo of myself to somebody and have no preconditions agreed to beforehand, is this not the same situation? Why would i be able to later enforce terms of non-disclosure on someone who might never agree to them.

    Is your argument that the context of my giving a naked picture of myself to someone is that there is an implied contextual restriction that it not be shared? Is the contextual restriction that the sender gets to decide, at any any point in the future, the terms by which the earlier gift be used?

    If I choose not to agree to these restrictions, what are my options? Am I bound somehow by your freely given gift to take action to delete it if I don’t agree to your unspoken, poorly defined and changing-over-time terms?

    Once you give an image away without compensation or a contract, is it in the public domain?

    A contract should only valid when BOTH parties agree, at least at one point. If you give me a naked picture of yourself, why should i be compelled to agree to whatever terms you think of later.

  11. Harodotus, you have the baseline flipped. Distributing a naked picture of another person implicates multiple torts, including copyright infringement and public disclosure of private facts. In this context, the only serious defense to either is consent: a license from the copyright owner or the permission of the person whose privates are displayed.

    So if A gives B a naked picture, the question is not, “Did A imply a contextual limitation” but rather, “Can B find an affirmative grant of permission?” Unless A gave the photograph to B for purposes of publication, the answer is almost certainly “no.” And gift law only governs the ownership of the photograph itself. Neither copyright nor privacy turns on posession of an item containing information that is otherwise legally restricted.

  12. prometheefeu says:

    Paul Gowder,

    I don’t see the easy intuitive answer in all cases. Let’s say the photo merely shows somebody in their underwear? Or let’s say the photo shows no skin but the subject of the photograph is wearing a tight revealing outfit? Or maybe the subject is engaged in an activity that is not generally considered erotic, but which is sexually fetishized by 20% of the population? Or maybe the subject is already the subject of widely distributed pornographic films meaning that the new depiction us unlikely to affect their reputation? How do we treat these situations when you are nit around to tell us?

  13. prometheefeu says:

    James,

    In many cases, the subject of the photograph may not be the photographer. They may have granted their now revengeful partner authorization to photograph them.

  14. Paul Gowder says:

    prometheefeu: you use the things on top of your necks to make sensible case-by-case judgments, recognizing that bizarre marginal case like you describe are going to be a very small fraction anyway? Maybe try not to sacrifice the obvious judgments of core cases because of the inability to state a rule that covers such marginal cases? (Almost like the problem of the margins of a classification scheme exists in every legal rule ever from ‘no vehicles in the park’ on down? Who’d have thunk it, other than everyone who has ever thought seriously and honestly about these questions ever?)

  15. Prometheefeu: “Authorization to photograph,” by itself, determines neither ownership of copyright nor the scope of a license to copy and distribute. If I authorize you to photograph me, I could be the owner, you could be the owner, or we could be joint owners. I can think of common fact patterns in which all three of these would be the case. Even if you’re the copyright owner, there’s still the public disclosure tort. There is no getting around the consent question. And as soon as the question is posed, it should be obvious that a blanket rule — giving permission to photograph waives all rights to object to the distribution of that photo — is surely incorrect.

  16. Harodotus says:

    James, I am not a lawyer, just a technical geek attempting to use my layman’s knowledge of law to understand.

    OK, so if what you’re saying is true (I’m assuming the giver had all rights to give the photo), then in my example, I was granted and own limited rights to either that physical photo paper (or the bits composing that photo on my computer/photo/etc.) If the baseline was flipped as you say, how am I somehow prohibited from showing it to others? Is it different if I transfer the physical photo to another? Are they bound by the restrictions the giver imposed upon me?

    If throw it away, have i transferred my title to the physical photo to the garbage company? Can they look at it?

    Is any of this different if the photo was a picture of a flower or a drawing? I get that regardless of how i obtain an image, I don’t suddenly gain all copyright privileges to that image, but surely some rights were granted me when they handed me an unsolicited picture.

    I get a lot of unsolicited spam in my email, it has a lot of pictures and text I disclose to Google in order to facilitate better spam filtering – am i violating a copyright on those images and text to do so? what if i publish all the spam i get publicly, is that a violation of the spam’s copyright?

    If what you’re saying is true, others can impose duties and restrictions upon me by their unsolicited acts upon me. If i have to delete the photo to avoid agreeing to such duties, then what if i get thousands of such pictures every day? Would I be legally bound to spend all my time deleting them?

    It used to be the case that someone could send you unsolicited physical goods in the mail and then require you to pay for them if you did not return them. The law was clarified and now you get to keep the goods if it was truly unsolicited. Isn’t this the same thing?

    Isn’t the core issue here “what rights to uses of the photo were transferred to me when you sent me an unsolicited photo”?

    I get that I probably have the rights to view it myself, but why do i not have the right to show it to others? To discus it with the press, to publish it, to talk about how horrible it was that the sender is distributing such photos?

    Congress people sometimes stupidly send such photos to women who then publish them for personal gain. Why is this any different?

  17. TJ says:

    Paul, it is also not very helpful to say that the differences are “obvious” or that asking for the content of the difference is “patholog[ical].” Yes it is a habit of lawyers to ask for a principle to explain differences in fact situations. But, guess what, we (at least, you, me, and Mary Anne) are all lawyers, so it hardly seems out of place to engage in the normal inquiries of our profession.

    In fact, if I might note, the title of this post begins with an hypothetical and implicitly demands an explanation for the difference in treatment. Saying “Revenge porn and boxing Are.Just.Different. Are you Seriously comparing them?” would surely not satisfy Prof. Franks or you, and indeed would be viewed as downright demeaning. With good reason, too.

  18. Harodotus, the short answer is that if A gives B a physical photo, B is the owner of that object and can do whatever he or she wants with it: burn it, throw it out, give it to C, sell it to D. The copyright owner (we can assume that’s A for now) retains the right to prevent making new copies (as would happen if B uploaded it to the Internet), but can’t sue in copyright to stop B from distributing that specific object (the photo) to other people (i.e. giving it to C, selling it to D). A’s privacy rights might stop B from giving it to C or selling it to D, if the photo would be considered highly offensive by a reasonable person and not of legitimate public interest. These restrictions — on making more copies, on uploading, on selling it, etc. — could all be relaxed if B gets appropriate permissions from A. But the act of conveying the photo, by itself, doesn’t grant those permissions.

    Some of your specific examples have clearer answers. If B throws away the photo, the garbage company takes title; it still doesn’t have the right to republish it. If you disclose your spam to Gmail, that’s protected in copyright by fair use (a defense that would be far weaker for revenge porn) and by sending someone an email, you almost certainly consent for them to disclose it to their spam filters. (Google almost certainly doesn’t thereby acquire a similar permission to publish the photo.) In terms of imposing duties, it’s a bit like being subject to the GPL: your duties arise not because you “agreed” to anything but because of the copyright. Your ability to copy and share the photo at all depends on the permission of the copyright owner; if you don’t like his or her conditions, you can destroy it just like you can delete free software if you don’t want to comply with its terms. (And, as with the GPL, note that these conditions might only become binding when you _redistribute_ the software.) The unsolicited physical goods are your physical property — but again, that doesn’t come with a grant of permission to make more of them if the items are copyrighted. (Imagine someone ships you an unsolicited DVD of_The Avengers_: you can sell that DVD, but not run off a thousand duplicates.) And as for Congressman Weiner, his status as a public figure changed the analysis in favor of allowing broader distribution.

  19. Paul Gowder says:

    TJ: a bit of theoretical backstop for the weird position I’m taking.

    Now a bit of intuitive backdrop: our legal judgments about principles often are driven by and evolved from (in the common law especially) our sense of justice, as applied in the real world to particular cases.

    The statement of a principle to capture the relative wrongness of revenge porn over silly examples like posting drunken pics would just be idle word-play: it would be the post hoc utterance of a principle to capture a case that’s already been decided. It would be like me asking you to state an abstract principle describing what’s wrong with cannibalism relative to eating beef. You could make something up, but it would be a lie to say that your judgment about the wrongness of cannibalism preceded from the principle instead of the other way around.

  20. Paul Gowder says:

    (Proceeded even. I’m going to blame apple spell check for that.)

  21. TJ says:

    Paul, at the risk of being impolite I’m going to suggest that you are mis-invoking the concept of the priority of the particular. It is true, as you state, that in strongly felt cases (cannibalism is certainly one of them, and I’ll stipulate for purposes here that revenge porn is as well) the particular has priority over the general theory. That is, in a situation where a general theory fails to produce the particular outcome, most people would think that is a problem for the general theory.

    But this does not logically imply that explicating a theory to explain the outcome is thereby “a lie” or “idle word-play.” All we are looking for is the actual principle that motivates the underlying intuition. The bad thing about post hoc construction of principles is that they are often dishonest; but this does not prove they are necessarily dishonest or worthless. It is not true that honest and rigorous self-reflection is a worthless exercise.

    To take your own cannibalism example, it is of course true that our normative commitments all say that cannibalism is a great wrong, and in this sense the particular has priority over the general. But it does not follow that one needs no principle to explain why cannibalism is a great wrong, or that any principle articulated to explain this intuition is necessarily insincere. The best illustration of this is that some people find that they can’t find any principled distinction between cannibalism and eating beef–and so they become vegetarians. Your strongly anti-theory stance basically denies the value of all legal reasoning, at least if one believes (as I do) that judges generally decide a case by looking for the intuitively correct outcome and then working backwards to articulate why it is correct.

    And, finally, to take back my stipulation now that the theoretical discussion is over, I think that you can get near-universal agreement to the intuition that revenge porn is more wrong than drunken picture posting. But it does not follow that you can get near-universal agreement that we should thereby criminalize or legally punish revenge porn, if the result is that we end up on a slippery slope to punishing drunken-picture posting. And of course, in the absence of an articulated principle, the slippery slope is not an illusory concern. Judges in our society cannot write opinions that say “They.Are.Just.Different.”

  22. AndyK says:

    I am curious what specific change in the law does the OP envision? Because subsequent discussion suggests that the victim has copyright infringement claims that he/she can bring, that seems to dovetail exactly with the harm involved.

    And additionally, criminalizing the conduct would work as well.

    But the OP seems to suggest that “revenge porn” is outside the law, which doesn’t seem borne out by the facts.

    If I share a photo with someone, and they exceed the scope of my permission, they can sue me and anyone else who publicizes the photo, right?

    So again on the remedy point, do we want scheduled damages here for certain substantive categories of infringement / media? Or something like a presumption of willful infringement when the item is a nude photo?

  23. AndyK says:

    because just to be clear: my overall concern is that this seems less like a theoretical problem with judicial conceptions of property or consent, and more something that lends itself to ad hoc statutory fix. IF we think this is a problem, THEN it seems there are standard legal tools to fix this. But if there is an implicit critique of the common law here, I’m not buying it.

    And I am seeing Congressman Weiner more like a victim now.

  24. PrometheeFeu says:

    Paul Gowder,

    I use my judgement all the time to determine whether my actions are right or wrong. But I am not asking you with help with my ethics. I am somebody living in a country where if I do something which I think right and a judge thinks against the law, I may be subject to fines or prison sentences. My hypotheticals are not purely theoretical. At least some of them are likely to arise. (I am thinking of the case of somebody being photographed in their underwear for instance) I think all citizens deserve to be put on notice rather than being told to go about their business and to just hope that their own moral judgement is not contradicted by a judge.

  25. PrometheeFeu says:

    James Grimmelmann,

    I agree that under some fact patterns, the subject of the depiction will hold the copyright. But I’m not sure that will be the case most of the time.

  26. Lurker says:

    PrometheeFeu and Mr. Gowder,

    in my opinion, PrometheeFeu’s example of publicizing a private picture of a drunk person is not silly. I believe that it should be covered by the same law as non-permitted publicizing of pictures of naked persons.

    As an example from Europe, I’d like to give a bit of statute law from the Finnish Penal Code:

    Whosoever, without lawful right,
    1) by utilising a method of mass media or
    2) by otherwise making available to numerous people
    publicizes a piece of information, a hint or a picture concerning other person’s private life so, that the deed is likely to cause damage or suffering to the person hurt, or likely to cause the person to be despised, shall be convicted to a fine or to imprisonment of not more than two years.

    Publicizing a piece of information, a hint or a picture concerning private life is not considered criminal if the person is acting in politics, business life, public office or civil service or in a position comparable to these, if the information, hint or picture can affect the evaluation of the person’s actions in such position, and the publication is necessary to discuss a publicly important issue.

    So, in Europe, such law does not give any bright lines that PrometheeFeu is asking for. Instead, these lines are defined, case by case, in criminal courts following the current community standards. However, I surely know that if I publish a picture of a person who is stone drunk without permission, I’m going to get prosecuted, unless that person is a CEO of a large company or a minister.

  27. Paul Gowder says:

    TJ what’s striking is that judges do write opinions that say, essentially, “they are just different.” The most famous example, of course, is Potter Stewart on obscenity.

    That being said, I’m happy to articulate a limiting principle for the prohibition to avoid the slippery slope worry, with the prior stipulation that nothing about the revenge porn case depends on that principle. That limiting principle is this: the law should more aggressively enforce privacy torts, harassment crimes, etc. when those torts and crimes are committed against traditionally socially subordinated groups, in a manner that replicates the terms of their social subordination. (Shameless self-plug on the way the law brings with it a demand to combat subordination.)

    The appropriation of women’s bodies and sexuality has been used to subordinate them for many generations; drunk people at parties have not been subject to similar subordination.

    That being said, I still want to insist on the view that we understand the special importance of avoiding subordination in this way (and furthermore understand how revenge porn is an example of such subordination) by intelligently examining our pretheoretic judgments about cases like revenge porn, rather than the other way around. Which is not to accept a general anti-theory stance, just to suggest that in some cases, the particularly does and should have priority. A general legal principle that permits the phenomenon of revenge porn is objectionable for that reason.

  28. Paul Gowder says:

    Jeez. “The particular,” not “the particularly.” I’ve gotta stop trying to write blog comments from an ipad.

  29. Ken Arromdee says:

    Paul, that principle would dictate that revenge porn depicting men is acceptable. It would also dictate that revenge porn of white women posted by black men is acceptable. For that matter it would dictate that revenge porn of important political figures is acceptable, as long as their political status outweighs their low status from being female.

  30. Paul Gowder says:

    Ken: that depends on whether the limiting principle is applied at the level of rules or cases. If we applied it at the level of [“]general[“] rules of law we could (and should) say: “revenge porn is the kind of activity that makes use of and replicates the subordination of women” and ban it generally even if particular instances of the species don’t have that property.

  31. anon says:

    Ken, your post contains logical errors. Paul’s limiting principle (subject of course to all his caveats) is this:

    “the law should more aggressively enforce privacy torts, harassment crimes, etc. when those torts and crimes are committed against traditionally socially subordinated groups, in a manner that replicates the terms of their social subordination.”

    That doesn’t mean that revenge porn depicting men is ACCEPTABLE. It means that revenge porn depicting women is more problematic (as a result of historical and ongoing social subordination) and should perhaps be punished more severely.

    It also doesn’t mean that black men posting revenge porn featuring white women is acceptable. That is a non sequitur. How is that act either less subordinating to women or emancipatory to black men?

  32. Mary Anne Franks says:

    First I want to say that this comment thread has been fascinating. Thank you in particular to the commenters (especially James Grimmelmann!) who have so patiently and thoughtfully responded to the numerous questions of law and policy raised here, and to everyone participating in this conversation in good faith.

    I won’t address every question raised in the comments, especially those that have been more than adequately addressed by other users, but I do want to say that I have a fairly specific legal remedy in mind for revenge porn, and that this will be the subject of an independent post. I look forward to your thoughts and questions about that proposal. What I will say here is that it is clear from the experience of revenge porn victims that current legal remedies are woefully inadequate. I will spell out the inadequacy of existing approaches in the next post, but let me note here that even if copyright, computer fraud, tort, etc. were applicable to most revenge porn cases (which they are not), they would still be inadequate because they do not reflect the real problem with revenge porn – that is, they do not capture its discriminatory dimension. Revenge porn is a problem not only because of the harm it causes individual victims; it is also a problem because it reflects and perpetuates gender inequality. It is, as Paul Gowder noted, a practice of subordination inflicted on a group already subjected to historical subordination. And as anon pointed out, that does not mean that harms imposed on non-subordinated groups do not count. The logic operates in exactly the opposite direction: if we can understand how even individuals with power and privilege are vulnerable to certain types of harm, then surely we can understand how much worse it is for individuals with considerably less power and privilege. This is why (as I understand it) Prof. Citron uses the term “cyber civil rights” in this context – some online abuses inflict not only individual or general harms, but harms so deep and so expressively damaging that they violate civil rights and our society’s supposed commitment to equality.

    This should explain somewhat the frustration many feel when comparisons are made between revenge porn and, say, drunken pictures, or being called a moron, or knowing a homeless person used your $10 on something other than food. There are two problems with making these kinds of comparisons. First, none of these examples takes seriously the kind of harm that victims of revenge porn have experienced: losing jobs; having to change names; having to relocate; having to change schools; in some cases committing suicide. These are not cases of mere embarrassment, irritation, or inconvenience. Second, none of these examples acknowledges the dimension of discrimination and subordination. As my original post was intended to show, non-consensual pornography belongs to a spectrum of behaviors that both reflects and perpetuates the indifference to women’s sexual consent, which in turn denies women full equality and humanity. To put it another way, flicking a used cigarette onto someone’s lawn is not the same thing as burning a cross on it, and at some point insisting that the burden must always be on the side who thinks cross-burning is more serious than cigarette-flicking starts to sound like bad faith. The burden ought, at least some of the time, shift to the other side. My post invites those who do not take revenge porn seriously to justify their position. To restate the implied question of my post, if you can’t punch a boxer in the face when he asks you for directions, why can you take a pornographic picture intended for private use and distribute it publicly without consent?

  33. PrometheeFeu says:

    Mary Ann Franks,

    I look forward to reading your specific policy proposal. This has been most enlightening and both the posts and the comments on the topic have given me much opportunity to consider and evolve my view on the matter.

  34. TJ says:

    Paul, yes Stewart is a demonstration of a judge saying, essentially, “they are just different.” But it is the exception that proves the rule: obscenity doctrine is regarded as an unmitigated and acknowledged failure. It is the epitome of what a judge should NOT do if he can possibly avoid it. Of course, he should also not insincerely articulate principles that he is not actually motivated by, but the premise of our legal system is for judges to articulate principles rather than to say “I know it when I see it.” The proper response to the inability to articulate the real principle for obscenity, under the predicates of our legal system, is to (a) admit that we can’t do it yet, and (b) try harder. You seem to perceive a contradiction between (a) and (b) that does not exist.

    I won’t comment on your articulated principle to distinguish revenge porn and other cases, because my point was that you needed to present one, whatever it may be. Now that you have done that, I need to think harder about whether the one you present is a good principle. But one last comment: I (and I think most people) agree that revenge porn is wrong, and that the particular has priority over the general on the moral issue. I.e. a moral theory that says revenge porn is not wrong calls the moral theory itself into question. But I am more skeptical–and again I think other people would be too–that people will necessarily share your somewhat different and much stronger normative predicate: that revenge porn is ipso facto something that should be legally punished, and that any legal theory that does not render revenge porn unlawful is a bad legal theory. Of course, the theoretical backdrop of this point is that there is a separation of morality from law, and you seem to be blurring that distinction to some extent.

  35. Stephen Stokes says:

    Prof. Franks,

    I saw you on Huff Posts and found your comments interesting. I am still trying to decide whether and to what extent some of your arguments involved a bit of sophistry. You described yourself as a feminist and I wonder whether once someone self-describes in that way if it is then possible to construct an argument contrary to the expected projections, despite what the facts otherwise might inform.