Private Law Theory

ABSTRACT
There is growing interest in using copyright to protect the privacy and reputation of people depicted in copyrighted works. This pressure is driven by heightened concerns about privacy and reputation on the Internet, plus copyright’s plaintiff-favorable attributes compared to traditional privacy and reputation torts. The Constitution authorizes copyright law because its exclusive rights benefit society by increasing our knowledge. Counterproductively, to advance privacy and reputation interests, copyright law is being misdeployed to suppress socially valuable works. This results in ‘memory holes’ in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984. By referencing Constitutional considerations, the Article identifies some limited circumstances where copyright’s goals are benefited by considering privacy and reputational interests. In other circumstances, treating copyright law as a general-purpose privacy and reputation tort harms us all.

Goldman, Eric and Silbey, Jessica M, Copyright’s Memory Hole (2019). Brigham Young University Law Review, forthcoming.

First posted 2019-03-19 07:22:24