United States: The First Circuit's "Scungy" Backpage: Copyright And Right Of Publicity Claims Ineffective Against Sex Trafficking

Last Updated: April 10 2016
Article by David A. Kluft

In Doe v. Backpage.com, the First Circuit affirmed the District of Massachusetts in holding that Section 230 of the Communications Decency Act (CDA) shields from civil liability a website used by third parties to facilitate the sex trafficking of underage girls.  If you haven't had a chance to follow the case, there are three basic takeaways: (1) the immunity provided by Section 230 of the CDA is very broad; (2) the judges are no happier about it than the plaintiffs; and (3) however you define the problem, intellectual property is not the solution.

Backpage Background

Backpage is an online classified advertising forum, the most profitable portion of which is what Judge Richard Stearns called a "scungy" adult entertainment section. This includes an "escorts" category in which users can find a local person who will trade sex for money, see pictures or videos of them, and then make contact.  According to the plaintiffs, Jane Does One through Three, this site has become a notorious haven for the promoters of the illicit trafficking of children for sex.  And they should know.  Jane Doe One claims that she was lured into the sex trade by a pimp when she ran away at 15 years old, and was raped over 1000 times in Massachusetts and Rhode Island as a result of being sold for sex through Backpage.com. Jane Does Two and Three have similarly grim tales.

In 2014, the plaintiffs brought a claim against Backpage in the District of Massachusetts pursuant to the Trafficking Victims Protection Reauthorization Act, which is supposed to provide victims of sex trafficking the right to bring a private civil action for restitution against "whoever knowingly benefits, financially or by receiving anything of value from participation in a venture which that person knew or should have known was engaged in an act in violation of this chapter." The plaintiffs alleged that Backpage knowingly profited from this industry by creating an environment friendly to child sex traffickers. Among other things, Backpage did not require verification of age or user identity, accepted anonymous payments, stripped out the metadata from photographs (which sets back law enforcement efforts), permitted key words such as "young" and "underage," and allowed intentional misspellings of otherwise barred terms such as "brly legal" and "high schl."

The Breadth Of CDA 230

Backgpage defended itself against these allegations, not by denying that its profits are in part derived from the sexual exploitation of children, but by claiming immunity under the CDA, which exempts interactive computer service providers from liability for content created by third parties. In other words, we didn't create these ads, so you can't sue us for them. The plaintiffs and amici asserted that Backpage forfeited its CDA immunity by creating a friendly environment for criminal activity.  However, the District Court held, and the First Circuit affirmed, that the website's "passivity and imperfect filtering system may be appropriate targets for criticism, but they do not transform Backpage into an information content provider" under any traditional interpretation of the CDA.

The plaintiffs then argued that the rationale for the traditional interpretation of the CDA — promoting the growth of the fledgling internet — is inapplicable here because: (1) the internet is no longer fledgling; and (2) who the hell wants this part of the internet to grow? The plaintiffs found sympathy for this position, but not relief.  Judge Stearns wrote that, if you don't like the outcome, complain to Congress, not to him, because he had "no choice" but to implement the legislature's policy decision to protect the economic well-being of the internet at the expense of less rigorous remedies against "abhorrent evil." The First Circuit doubled down on this non mea culpa, noting that while there was a "persuasive case" that Backpage "has tailored its website to make sex trafficking easier," nevertheless "the law requires that we, like the court below, deny relief to the plaintiffs whose circumstances evoke outrage."

IP Claims To the Rescue . . . Again . . . Not

The plaintiffs also brought claims for copyright infringement and violation of the Massachusetts and Rhode Island right of publicity statutes, based on the use of their photographs in the Backpage advertisements. In doing so, the plaintiffs attempted to take advantage of an exception to CDA immunity, Section 230(e)(2), which provides that the CDA cannot be "construed to limit or expand any law pertaining to intellectual property." As we've frequently discussed on this blog, this exception has been the catalyst for many attempts to use IP law to remedy non-IP problems. And it almost never works. For example, copyright law is usually a poor substitute for defamation law, of dubious value against international fatwas, and even worse at stopping the destruction of the Indonesian rain forest.

Well, it turns out that IP law can be equally inept when called upon to battle child sex trafficking. As to the right of publicity claims, the plaintiffs alleged that Backpage profited from the use of their images for commercial purposes.  The District Court doubted that the right of publicity counts as "intellectual property" at all, but the First Circuit skipped this issue and held that the plaintiffs' right of publicity claims could not prevail because Backpage's uses of the photos were "incidental." Put another way, Backpage profited from the sale of space for advertisements that contained the photographs, but it was the pimps — not Backpage — who  benefitted from the misappropriation contained in those photographs.

As to the copyright claims, which the First Circuit identified as the "last leg of the journey," at least some of the photographs in the advertisements were selfies that the plaintiffs were forced to take at the time they were being trafficked. Plaintiffs tried to use these photographs as a vehicle both for enjoining parts of the website and for collecting damages. The First Circuit was skeptical that injunctive relief was appropriate because there was no substantial likelihood the photographs would be reused, now that the plaintiffs are no longer the subject of active advertisements. And in order to recover compensatory damages, the plaintiffs would have to show actual harm caused by the infringement to the value of the photographs, for example in the form of lost licensing fees. Here, however, the District Court noted that the plaintiffs alleged "no plausible link" between such harm and the alleged infringement and, in any event, the plaintiffs also failed to allege that the photographs had economic value.

Back up and tell me if that last point sounds right to you: the copyright claims were dismissed because pictures of undressed teenage girls don't have any economic value on the internet. Have we finally all gone through the looking glass? In fairness to Judge Stearns, he was talking about the allegations – not his findings.  But this disconnect demonstrates precisely why copyright law is often toothless in this type of situation. The plaintiffs brought this complaint because they were victims of a criminal rape industry, not because they didn't get enough money for licensing their art. You and I care mostly about the former harm. But copyright law was designed only to recognize the latter.

A Statutory Damages Coda

And finally – yes, I know about the statutory damages argument. Those still convinced that copyright law is a panacea for everything from revenge porn to bad restaurant reviews will point out that the Court left open the possibility of a statutory damages claim (and attorneys' fees) for registered works. Had the plaintiffs registered the copyright in their selfies in advance of the infringement, they could have sought damages and attorneys' fees without making the above-mentioned showing of actual harm. Very clever. But how exactly do you get a homeless teenage prostitute to spend her day off – which she doesn't have – registering selfies from her pimp's cell phone with the Copyright Office in the hopes of one day escaping her pimp and surviving a Rule 12(b)(6) motion on a slightly more viable copyright claim? See why that's not much help?

You can find the District Court opinion here and the First Circuit Opinion here, which issued March 14, 2016.  On March 30, 2016, the plaintiffs moved for en banc review on the grounds that the First Circuit panel failed to follow relevant precedent, and because of the importance of the underlying claims. We will keep you posted.

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