In 2006, Jason Fortuny was posting a fake ad on Craigslist. He pretended to be a 27 –year-old female bondage enthusiast. She (Jason) was looking for a “white or latin man … to give intensive pain and discipline.” Fortuny then collected the replies, 178 in total (145 of them with pictures of men showing them “in various states of undress”), and posted them online. And, as this would not be enough, he did this without alteration, including photos, names and contact information.
One of his victims is suing him now for $75,000 alleging copyright infringement, public disclosure of private facts, intrusion upon seclusion and injunctive relief. So the questions which the court has to answer to judge the case are such as: Who owns a photo that is sent via email? Had Fortuny a right to publish them? Is the photo enough to identify the plaintiff (his name has not been revealed) and cause $75,000 in harm? And is harm even required for him to prevail?
Who is the owner and whether Fortuny was allowed to use the photo are questions about copyright law. According to the blog of Christopher Null, most lawyers argue that the copyright of an email (or letter) resides with the sender, but that the recipient may have a fair use claim that could allow for republication. Fortuny’s motion says there hasn’t been a violation of the copyright, since he used the photo “to discuss how DMCA (Digital Millennium Copyright Act) law can be used to bill free speech.” Further he said, that the use of the photo is in reduced form, transformative, not affecting the market value and for a purpose of education and public interest.
We can see that the legal issues in this case are complicated. Even for Jonathan Zittrain (in The AP), law professor at Oxford and Harvard, it is not clear whether Fortuny violated any laws.
The Electronic Frontier Foundation indicated that Fortuny may be liable under Washington State Law. His liability then depends on whether the information he disclosed was of legitimate public concern. Kurt Opsahl (EFF’s staff attorney) said: “As far as I know, they (the respondents) are not public figures, so it would be challenging to show that this was something of public concern”. Professor Zittrain argues similarly: “In this case, however, the men who replied to Fortuny’s posting did not appear to be doing anything illegal, so the outing has no social value other than to prove that someone could ruin lives online.”
According to this, my opinion is that there was no fair use of the photo (so: copyright infringement), because I can’t see any educational values or public interest behind publishing. That’s close to the way we would handle this case in Switzerland: The publishing of a stranger’s photo is an infringement of his personal rights (statute: ZGB 28) which gives the plaintiff the right to sue for compensation (if there is harm, default and causality between infringement and harm).
Christpher Null on:
The Associated Press (by Anick Jesdanun) on:
Lou Cabron on: