In 2003, photographer Kenneth Adelman, posted images of the California coastline, which he described as dedicated to the preservation of California’s coastline. As we all know, there is some very pricey real estate on certain segments of the California coast, especially in Malibu. Barbara Streisand, who owned a large coastal estate, saw her property depicted in one of the 12,000 images that Adelman posted (Image 3850). Claiming it violated her privacy and the Anti-Paparazzi Act, she sued him for $10 million. The lawsuit was eventually dismissed on grounds that she had failed to make out a claim and the court ordered Streisand to pay Adelman’s attorneys fees.
That’s not the worst of it, though. According to the court’s ruling, Image 3850 was downloaded only six times before Streisand filed suit and two of those downloads were by her lawyer. Within a month of the filing, hundreds of thousands of voyeurs viewed the image. Streisand’s property had became an Internet hit. Certainly, not the result that Streisand intended. Blogger, Mike Masnick, coined the expression the “Streisand Effect,” a description that has stuck. He wrote:
How long is it going to take before lawyers realize that the simple act of trying to repress something they don’t like online is likely to make it so that something that most people would never, ever see (like a photo of a urinal in some random beach resort) is now seen by many more people?
The pattern has repeated in many contexts: businesses issuing aggressive cease-and-desist letters, governments attempting censorship, and public figures trying to bury unflattering material. Rather than disappearing, the targeted content spreads more widely because the suppression attempt itself becomes newsworthy.
Here’s another example. In 2007, someone posted the code for unlocking HD-DVD’s on Digg.com. The code let users to make copies of the DVD’s, thus bypassing security measures. Disney, Microsoft, and IBM, all investors in the disc format, sent cease-and-desist letters to Digg.com‘s owners. According to Forbes, users of the site were outraged and although Digg.com removed the posts, users
staged a digital riot, covering Digg’s pages with links to the banned digits, printing them on T-shirts and immortalizing them in a song that’s been played on YouTube more than 200,000 times.
Two decades later, nothing has changed, except that information now spreads faster, farther, and with less context. More recent examples abound. You can see a list on Wikipedia.
The Streisand Effect has been the subject of scholarly work as well. But from a practical standpoint, what does it mean for rights owners who are obligated to protect their rights? Most importantly, it means you have to think before you act. No matter how outraged you are at someone’s indiscretion, your outrage can make matters worse.
Before sending a cease-and-desist letter or filing suit, ask yourself whether there is a more private way to solve the problem. Can you negotiate a resolution without going public with a lawsuit? If you do draft a cease-and-desist letter, review it with the possibility in mind that it could be posted online. Are your demands reasonable? Is your language measured rather than inflammatory? What would the ramifications be to your reputation and business if the dispute were to go public? You might even conclude that the risk of exposure is more damaging than simply ignoring the issue. Barbra Streisand probably wishes she had.
These are important considerations. Just keep in mind that you have powerful tools for protecting intellectual property. The public has only one tool: amplification. Be careful what you wish for.
— Adam G. Garson, Esq.