Copyright to the Rescue: Should Copyright Protect Privacy?

Abstract

In the summer of 2015 the news of the leak of data associated with Ashley Madison hit. Many may have missed the copyright angle to that news story – Ashley Madison sought to use the Digital Millennium Copyright Act’s takedown provisions to secure its customer’s data. This piece considers the normative question of whether copyright ought to protect privacy by first considering the extent to which the normative bases for protection of copyright and privacy are complementary or in conflict and the history of the relationship between copyright and privacy. The piece notes the recent use of copyright in various cases to protect against incursions upon privacy and considers the benefits and problems associated with those uses; specifically, I argue that whatever role copyright has to play in protecting privacy, treating any such privacy right as one with constitutional dimensions is out of line with both copyright’s constitutional basis and right to privacy theory and jurisprudence. Thirty years ago in Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) the Supreme Court blurred the line between the tort of the right to privacy and the constitutionally protected right to privacy in the context of copyright. This piece argues that rather than continue down that convoluted road, we ought to return to the principles embodied by the common law right of first publication by statutorily adopting the moral right of first disclosure. Finally, the piece suggests that any federal privacy legislation aimed at protecting against invasions of privacy on the internet utilize, as a starting place, the DMCA’s remedial provisions.