New Paper Announcement: “Copyright’s Memory Hole”

I’m pleased to announce a new paper, “Copyright’s Memory Hole,” co-authored with Northeastern Law professor Jessica Silbey. The paper is still in draft form, and Jessica and I plan to do a major edit to the paper this summer. So we would gratefully welcome your comments!

The paper examines the doctrinal boundaries between copyright and privacy laws. As I’ve documented many times on the blog, plaintiffs increasingly attempt to use copyright to advance privacy and reputational interests. Victim advocates often celebrate those efforts because copyright provides such powerful tools to remediate victim concerns. However, many of those efforts distort and abuse copyright law, turning copyright law into a general purpose tort–but without much-needed counterbalancing doctrines. Indeed, the censorial impulses driving copyright overreaching lead to the suppression of truthful information and the scrubbing of valuable public discourse (hence the memory hole analogy), producing outcomes that undermine the progress of science and therefore vitiate the Constitutional quid-pro-quo justifying copyright.

Despite that, privacy and reputational interests are relevant to copyright doctrine in some limited situations. The paper teases out those circumstances, such as never-disseminated works that might not exist without the implicit privacy protection afforded by copyright law. Thus, the paper provides a roadmap to distinguish the legitimate and illegitimate bases for protecting privacy via copyright, and it provides some basis to contain copyright’s privacy interests to limited circumstances.

Regular readers will see many familiar “faces” in the paper: Section 230 and Section 512 make appearances, as well as writeups of blog-favorite topics like Medical Justice, Scott v. WorldStarHipHop, Katz v. Chevaldina, Small Justice v. Xcentric, Garcia v. Google, anti-SLAPP laws, and much more. We hope you enjoy the paper!


The paper 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.