Eric Goldman on Copyright’s Memory Hole

Professor Eric Goldman and his co-author Jessica Silbey (of Northeastern University School of Law) have published Copyright’s Memory Hole at 2019 BYU L. Rev. 929 (2020). Their article focuses on the use of copyright to protect the privacy and reputation interests of people who are depicted in copyrighted works. Copyright law seeks to encourage the publication and dissemination of socially valuable works, perhaps counterintuitively, by giving to the author of a work the right to suppress the work from the public. Goldman and Silbey concede that in limited circumstances the public interest (and the goals of copyright law) may be served when copyright is used to protect privacy interests. For example, copyright protection of never-disseminated works during the author’s lifetime may safeguard the author’s intellectual freedom and enhance authorial productivity. The authors conclude, however, that society suffers on balance when copyright law is used as a sort of privacy tort. Copyright holders who are concerned about their privacy or reputation may suppress works that otherwise benefit society: “Copyright law is being misdeployed by suppressing socially valuable works in a counterproductive attempt to advance privacy and reputation interests … result[ing] in “memory holes” in society’s knowledge, analogous to those discussed in George Orwell’s dystopian novel 1984.” After exploring why and how copyright law has become a favorite tool to manage privacy and reputation interests and how these efforts complement or conflict with the goals of copyright, the authors advance several reform proposals to limit misuse of copyright to create memory holes, including enhancing the fair use doctrine, awarding attorney fees more routinely to prevailing defendants, applying federalized anti-SLAPP protection to copyright cases brought to advance privacy interests at the expense of socially beneficial speech, and limiting the duration of copyright protection to parallel the duration of privacy claims when the plaintiff seeks to use copyright to advance privacy interests.