How Many Wrongs Make a Copyright?

Rebecca Tushnet

Georgetown University Law Center


Minnesota Law Review, Vol. 99, Forthcoming

Derek Bambauer’s provocative paper argues that, because the remedies available to people who suffer unconsented distribution of intimate images of themselves are insufficient, we should amend copyright law to fill the gap. Bambauer’s proposal requires significant changes to every part of copyright — what copyright seeks to encourage, who counts as an author/owner, what counts as an exclusive right, what qualifies as infringement, what suffices as a defense, and what remedies are available. These differences are not mere details. Among other things, incentivizing intimacy is not the same thing as incentivizing creativity. Bambauer’s argument that copyright is normatively empty and already full of inconsistencies and exceptions does not justify such profound changes. Bambauer’s true target is § 230 of the Communications Decency Act, which protects online intermediaries from liability stemming from users’ violations of others’ privacy. Copyright claims aren’t subject to § 230, so his proposal hopes to force intermediaries to do more in revenge porn cases. But the case for requiring more from intermediaries to protect privacy should be made on its own merits, not by distorting copyright law.

Number of Pages in PDF File: 22

Keywords: copyright, revenge pornography, 230

JEL Classification: K00, K30, K39

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Date posted: March 1, 2014  

Suggested Citation

Tushnet, Rebecca, How Many Wrongs Make a Copyright? (2014). Minnesota Law Review, Vol. 99, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2402316

Contact Information

Rebecca Tushnet (Contact Author)
Georgetown University Law Center ( email )
600 New Jersey Avenue, NW
Washington, DC 20001
United States
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