The MPAA has come out in opposition to a “revenge porn” bill proposed in Minnesota. The motion picture lobbying organization, which represents six of the biggest Hollywood studios, released a statement last week citing concerns that the bill violates freedom of speech. The bill, similar to revenge porn laws passed in 26 other states, makes it illegal for ex-lovers to post sexually explicit images of another person without their consent. At this point, there is no federal law that protects the rights of victims of revenge porn.

“The bill in its current form could limit the distribution of a wide array of mainstream, Constitutionally-protected material, including items of legitimate news, commentary, and historical interest,” said the MPAA’s statement. “For example, images of Holocaust victims, or prisoners at Abu Ghraib, or the Pulitzer-Prize winning photograph entitled “Napalm Girl,” which shows a young girl running screaming from her village, naked, following a Napalm attack, could be prohibited under the terms of this legislation.”

The MPAA statement also suggests that specific language needs to be added to the bill that spells out “intent to harass” as necessary grounds for criminal prosecution. The MPAA isn’t alone in arguing for this addition. The American Civil Liberties Union of Minnesota pushed for a similar alteration, arguing that lack of intent might make the bill susceptible to constitutional attack. This in turn reduces the likelihood of a criminal charge against perpetrators being upheld in court.

Rep. John Lesch, who introduced the bill, said adding that language “guts” it. The Cyber Civil Rights Initiative agrees, arguing that proving “intent to harass” in court is very difficult and reasons such as entertainment or profit could easily protect sexual harassers. The revenge porn measure was approved by a public safety committee and is pending before the Minnesota legislature.

At first glance, the MPAA’s stance, even mere involvement, against this bill seems bizarre. With recent celebrity nude photos scandals that implicated actresses like Jennifer Lawrence, dubbed “The Fappening” by certain corners of the internet, support for an anti-revenge porn bill might go hand in hand with a major Hollywood lobbying group.

And then there’s the MPAA’s support for the Stop Online Piracy Act (SOPA) in 2011. This bill, which expanded government rights to shut down websites that might post infringing material, had many freedom of speech activists up in arms for its broad language regarding what kind of content the government could remove. The MPAA didn’t seem all that concerned with protecting freedom of speech back then; now, the MPAA seems to be coming out in favor of protecting it. So what does Hollywood stand to gain by opposing this bill?

Media lawyer Christine Corcos sees the connection between the MPAA’s strong anti-piracy stance and the revenge porn bill. “Support for free speech, or support for free expression, can be and often is support for constitutionally or legally permitted speech, even when it is speech that is objectionable, disliked, offensive, or otherwise displeasing to the community or to some within the community or to the government,” she said. “You might take the position that in order to support free expression, you might need to protect your intellectual property through legislation, just as you might need to resort to the legal system in other ways, precisely in order to disseminate what some might consider objectionable ideas and thus to protect free expression.”

The MPAA might see government protections of any content producers, even in the case of those who might be distributing revenge porn, as a step in the right direction in terms of legislative power over intellectual property.

But in the case of revenge porn, who even owns that content? Is it the person featured in the image, the photographer, the person for whom the nude was first sent? It’s a question that led some lawyers to suggest an interesting legal defense for victims of revenge porn: copyrighting your own nudes.

The idea is that if someone finds naked images of themselves on a revenge porn site, and the picture is a selfie, they can quickly accuse a website of violating copyright law and insist that the image get taken down. Thanks to the Digital Millennium Copyright Act (DMCA), they must take down the image once they receive notice or the website is subject to lawsuit. This elegant solution provided victims with legal grounds to remove pictures of themselves without even having to hire a lawyer.

Yet the “long memory” of the internet makes this strategy challenging in practice. The virality of images makes the erasure of nudes online very challenging, and as these photos pop up from site to site, removal can be like a game of whack-a-mole. Additionally, the DMCA does not require that a website itself monitor its content for any users that might post copyright infringing images. As long as it responds to take down notices, which places the onus on the image owner, it’s fine to keep running a site that is flushed with stolen content.

This legal conundrum surfaced in the news in 2012, when the MPAA got involved in another porn related case. This time, it came out in support of porn website Flava Works, which focuses on gay black and latino erotica. Flava Works and the MPAA argued that another porn website that embedded Flava Works-owned videos and images should be shut down for copyright infringment. Flava Works ultimately lost the case, and the competing porn website was allowed to keep functioning.

Carrie Goldberg, a lawyer who specializes in revenge porn cases and contributed to shaping the Minnesota revenge porn bill, sees the MPAA’s actions as evidence of hypocrisy. “In Flavaworks, the MPAA was worried about an unlicensed on-demand Internet service that attracted an audience for infringing content. They wanted to suppress the spread of copyrighted content. Yet, they now are attacking revenge porn laws which ultimately would also reduce copyright infringements,” she argues. “Without laws criminalizing nonconsensual porn, nothing will deter bad actors from spreading it, resulting in more copyright infringements.”

She added that the copyright tactic of removing revenge porn ultimately fails because offenders have no legal pressure to stop disseminating these images. It’s one reason why she says the Minnesota bill needs to go through. “Unfortunately, the MPAA doesn’t care about copyright infringements when it comes to the private and personal material that belongs to ordinary people.”

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