Old Law Is New Online Weapon

The latest weapon for battling unwanted online exposure may be a very old school approach – copyright law. Here’s a piece from techdirt.com about a widow – Dina Mackney — who’s using copyright law to remove her husband’s suicide note from various online postings. She also seems bent on removing just about any mention whatsoever of her deceased husband from any online site. And she has a court order from a Virginia judge that’s helping her effort immensely. Specifically, the court order says:

ORDERED AND DECREED that Petitioner shall have the legal authority to take any reasonable action necessary to access, remove and destroy any web postings, to require that websites be taken down and/or otherwise dispose of intangible property including but not limited to information that the deceased has posted online on any website or social media account including . . . and to wind down and remove any website posts or other online activity by the decedent at such time and in such direction as the Administrator may deem appropriate, it being the intent that this Order shall apply to any online activity by the decedent during his lifetime.

Any questions? Pretty broad order, considering it allows her to seek the removal of pretty much anything her deceased husband ever posted online. More about this in a minute.

And the Virginia decree is in line with efforts by victims of revenge porn to use copyright to force sites to take down photos posted by bitter ex-lovers. So why use copyright law? Because it actually trumps Section 230 of the Communications Decency Act. That law says that Web site operators can’t be deemed the publishers of content supplied by third parties, and can’t be compelled to remove content on the basis that it’s defamatory or invades privacy. So if creepy ex-boyfriend posts a photo on a site like IsAnyoneUp.com (I’m not making that site up), the site operator can use Section 230 as a shield to liability.

But Section 230 has a carve out for intellectual property laws – “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Which means that site operators can be compelled to remove infringing content, such as revenge porn.

And I get that. But I’m not sure about the scope of the order in the Dina Mackney case. Even if she legitimately controls her deceased husband’s intellectual property rights, when he posted material on sites like Facebook, he gave Facebook a virtually unlimited license to use that material. So while Ms. Mackney may be able to take down a copy of her husband’s suicide note that a third part posted, I’m not really sure she’s going to be able to force anyone to take down material that her husband posted while he was alive. Court order or no court order.