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. But copyright law is being misdeployed by suppressing socially valuable works in a counterproductive attempt to advance privacy and reputation interests. This results in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.
This 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.
© 2020 Brigham Young University Law Review
Eric Goldman and Jessica Silbey,
Copyright’s Memory Hole,
2019 BYU L. Rev.
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2019/iss4/6