Copyright to the Rescue: Should Copyright Protect Privacy?

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment. Part II of this paper begins this consideration by discussing two cases in which plaintiffs asserted copyright claims in addition to privacy allegations, though the underlying injuries were clearly primarily privacy-based. Part III provides a brief overview of the current state of privacy law. Part IV then considers the theoretical and jurisprudential overlap between privacy and copyright, and highlights the problems presented by protecting privacy through copyright. Part IV also suggests two relatively modest legislative solutions: (1) a limited federal statute that would provide a plaintiff alleging online privacy infringement with a remedy analogous to the DMCA’s takedown provisions available to those alleging online copyright infringement; and (2) statutorily adopting the moral right of disclosure already recognized in other countries in order to codify the common law right of first publication. Finally, Part V concludes by returning to the Ashley Madison example to consider the potential of the proposed solutions to address the problems presented