Can Victims of Child Sexual Abuse Material Use Copyright as a Method of Full Restitution from Possessors and Distributors?

• Author: Seeton, Erin

TABLE OF CONTENTS I. INTRODUCTION 425 II. THE POSSESSION AND DISTRIBUTION OF CSAM CAUSES VICTIMS HARM 428 III. CURRENT AND HISTORICAL RESTITUTION SCHEMES FOR VICTIMS AND WHY THEY FAIL TO PROVIDE FULL FINANCIAL RECOVERY 429 IV. COPYRIGHT BASICS AND MINIMUM REQUIREMENTS FOR PROTECTION A. Purpose of Copyright Law 431 B. Only Original and Fixed Works Are Eligible for Copyright Protection 432 1. To Be Eligible for Copyright Protection, a Work Must Be Original 432 2. To Be Eligible for Copyright Protection, a Work Must Be Fixed 433 V. CONTENT NEUTRALITY AND COPYRIGHT OF ILLEGAL OR OBSCENE WORKS 433 VI. BENEFITS TO VICTIMS BY UTILIZING COPYRIGHT OWNERSHIP 435 A. Rights Protected Under Copyright Law 435 B. Remedies Afforded to Copyright Owners Upon Infringement 436 1. Damages 436 2. Removal Under the Digital Millennium Copyright Act 437 C. Technology Exists to Detect Infringement and Send Take-Down Notices to Copyright Infringers, Meaning Victims Could Find and Sue Infringers Through Copyright Attorneys Without Ever Appearing in Court 438 VII. UNDER CURRENT COPYRIGHT LAW, VICTIMS CAN NEGOTIATE WITH THEIR ABUSERS FOR OWNERSHIP OF THE COPYRIGHT IN THEIR ABUSE IMAGES, BUT THIS IS UNCERTAIN AND CAN BE PSYCHOLOGICALLY DAMAGING TO VICTIMS 438 VIII. AMENDING THE COPYRIGHT ACT WOULD ALLOW CSAM VICTIMS TO ACHIEVE FULL FINANCIAL RECOVERY FROM THOSE WHO POSSESS THEIR ABUSE IMAGERY 439 A. Amending the Definition of Authorship for Works Relating to 18 U.S.C. [section][section] 2251 and 2252 So Ownership of Copyright in CSAM Initially Vests in the Minor(s) Depicted 440 B. Amending the Ability to Terminate Transfers 441 C. Amending the Registration Prerequisite for Statutory Damages and Attorney's Fees 441 IX. CONCLUSION 442 I. INTRODUCTION

In 2014, a young woman known pseudonymously as Amy appeared in court seeking victim's restitution in the case Paroline v. United States. (1) In Paroline, defendant Doyle Paroline pleaded guilty to possession of between 150 to 300 images of child sexual abuse, including two of Amy, in 2009. (2) At the time of the Paroline case, the images of Amy's childhood sexual abuse were some of the most widely seen and distributed child sexual abuse images on the Internet, with more than 70,000 individual images on computers all over the world. (3) Amy sought restitution under 18 U.S.C [section] 2259 (4) totaling over $3.4 million for her lost wages and other financial harm caused by the continued circulation of her abuse. (5) The United States Supreme Court in Paroline held that a victim could collect restitution under [section] 2259 "only to the extent the defendant's offense proximately caused a victim's losses." (6) This holding severely limited Amy's ability to collect restitution damages for lost wages. Because of Amy's abuse, she has been unable to regularly work, and will require psychological and psychiatric treatment for the rest of her life. (7) Amy received counseling throughout the 1990s, and in 1999, her psychologist reported that she was getting back to normal and healing from her abuse. But in the early 2000s, she found out that her abuse images were some of the most shared online, and her recovery took a drastic downturn. (8) The knowledge that abusers still share and possess her image has taken a serious toll on her mental health. (9)

In response to this set back in Amy's ability to recover financially from those who view and distribute her abuse, her attorney, James Marsh, negotiated with the abuser, her uncle, for the transfer of the copyright of the abuse images to Amy. (10) Marsh then registered the copyright of these images with the United States Copyright Office, providing descriptions of the images instead of the images themselves, due to the illegality of the images. (11)

It is illegal in the United States to produce, distribute, receive, and possess child sexual abuse images. (12) Victims of these crimes are eligible to collect restitution under several different schemes, (13) but actually recovering financially from the harm can be difficult because litigation costs are high for the victim, both monetarily and psychologically. Many victim restitution laws still require victims to prove how defendants caused their harm, which can lead to victims reliving their trauma when they bring suit, thereby increasing emotional cost for victims and decreasing their willingness to litigate these claims. (14) Even the most recent restitution scheme, the Amy, Vicky, and Andy Act ("AVAA"), which does not require a nexus of harm, still only delivers nominal damages for possession of images. (15) The minimum a victim can collect from a defendant under the AVAA is $3,000. (16) Yet Amy's estimated losses total over $3,000,000, meaning that she would have to litigate over 1,000 minimum restitution cases to fully recover financially. (17) Amy's attorney presumably thought that he could litigate fewer cases with higher damage rewards to achieve full restitution for Amy under the Copyright Act of 1976. Additionally, when victims own the copyright of the images or videos in which they appear, they have the ability to send take-down notices as provided in the Digital Millennium Copyright Act ("DMCA"). (18) Under the DMCA, copyright owners are able to send notices to service providers (19) informing them that there is infringing material on their sites, and if a service provider does not take down the infringing material, the copyright owner may sue the service provider for contributory or vicarious copyright infringement. (20)

There are other incentives for victims to move to own the copyright of the images and recordings depicting their abuse. In other intimate media realms, such as pornography involving adults but created through coercion or abuse, and sexual images publicized without consent (also known as "revenge pornography"), scholars have argued that there is a marked benefit to the victims when they own and feel like they have control over their abuse imagery. (21) Even if victims cannot fully stop the circulation of their abuse images, the knowledge that they have power over the images, as opposed to their abuser, can be calming and eases some anxiety relating to the continued circulation of the images. (22)

This method of receiving full restitution should be examined carefully. Although Amy's attorney was seemingly able to register the images with the Copyright Office, it is still unclear if a judge would uphold the registration in court. The Supreme Court has never answered whether copyright protection for material that is illegal in its mere creation would be enforceable. There are complexities within the copyright regime that could make the fight to gain ownership, and then exercise of that ownership, more burdensome than suing hundreds of times under victim's restitution statutes. Such complexities include the hardship of negotiating with abusers for the transfer of the rights, creators' rights to terminate those transfers at later dates, and the costs associated with policing the Internet for the copyright-protected images. Many obvious solutions to these problems involve making small, but meaningful changes to the basic definitions of the Copyright Act. Nevertheless, the issue is extremely complex, especially considering that victims' compensation falls far outside the purpose of the American copyright system. Even so, in some situations, copyright could be a tool for victims to achieve full restitution from those who possess and distribute their abuse images.

This Note argues that because the current restitution regime is inadequate and harrowing for victims, victims of child sexual abuse material should be able to pursue fuller restitution by obtaining ownership of their abuse material and suing those who download, publish, or otherwise infringe the copyright of these images. This Note also suggests three amendments to the Copyright Act to streamline the litigation process and ensure that victims can obtain more beneficial damages awards in the easiest way possible. This Note will first look at the harm that circulation of child sexual abuse material (CSAM), also known as child pornography, inflicts on victims and why restitution is so vital for the healing of victims. Next, this Note will discuss the current laws in place that authorize CSAM victims to seek restitution from their abusers and the challenges victims face when attempting to do so. Section III will explain the basics of copyright law as it relates to victims attempting to utilize the copyright system, including the purpose of copyright law, what can be copyrighted, and what protections copyright owners have. Sections IV and V of this Note will discuss the benefits and detriments of having a content-neutral copyright scheme and how a victim could potentially benefit from using copyright law. Section VI addresses how detrimental negotiating for a copyright could be for a victim, and why an amendment is necessary. In the final section, this Note suggests three amendments to the Copyright Act of 1976 that would effectively make minors depicted in CSAM the authors of the work, prevent abusers from regaining ownership of the CSAM they create, and dispose of the registration prerequisite in works relating to CSAM.

2. THE POSSESSION AND DISTRIBUTION OF CSAM

   CAUSES VICTIMS HARM

   The Supreme Court has long held that the harm suffered by child pornography victims is twofold. (23) The Court in New York v. Ferber first held that CSAM (called "child pornography" by the Court) harms victims not just by the abuse involved in the creation of the material, but also in the continued viewing and distribution of the material because the images or recordings are a "permanent record" of the abuse. (24) The continued circulation of the material "may haunt [the child] in future years, long after the original misdeed took place," because the child must live knowing that their abuse material is part of a mass distribution network of...