Copyright’s Memory Hole

58 Pages Posted: 18 Mar 2019 Last revised: 23 Mar 2019

See all articles by Eric Goldman

Eric Goldman

Santa Clara University - School of Law

Jessica M. Silbey

Northeastern University School of Law

Date Written: 2019

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.

Keywords: copyright, privacy, reputation, orwell, 1984, censorship, free speech, memory hole

JEL Classification: K13, K42, D8

Suggested Citation

Goldman, Eric and Silbey, Jessica M., Copyright’s Memory Hole (2019). Brigham Young University Law Review, Forthcoming; Northeastern University School of Law Research Paper No. 344-2019. Available at SSRN: https://ssrn.com/abstract=3351348

Eric Goldman (Contact Author)

Santa Clara University - School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States
408-554-4369 (Phone)

HOME PAGE: http://www.ericgoldman.org

Jessica M. Silbey

Northeastern University School of Law ( email )

416 Huntington Avenue
Boston, MA 02115
United States

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