WEAPONIZING COPYRIGHT.

AuthorSmith, Cathay Y.N.

TABLE OF CONTENTS I. INTRODUCTION 195 II. WEAPONIZING COPYRIGHT 199 A. Weaponizing Copyright to Punish and Retaliate 201 B. Weaponizing Copyright to Erase Facts and Bury Information 207 C. Weaponizing Copyright to Suppress Criticism and Speech 214 D. Weaponizing Copyright to Protect Reputation and Moral Rights 219 E. Weaponizing Copyright to Preserve Privacy 223 III. COPYRIGHT, THE WEAPON PAR EXCELLENCE 226 A. Why Copyright? 227 1. Everything Is Copyrighted and Everyone Is an Infringer 227 2. Copyright Disputes Are Expensive and Copyright Weaponizers Are Motivated 229 3. Copyright's Remedies Allow Suppression of Content with Limited First Amendment Review 230 4. Copyright's Extrajudicial Remedy Encourages Weaponization 231 5. Copyright Defenses Fail to Discourage Copyright Weaponization 233 B. Copyright as Legal Gap Filler 237 1. Copyright Is Better than Privacy Laws at Protecting Privacy 238 2. Copyright Is Better than Moral Rights Laws at Protecting Moral Rights and Reputation 241 IV. WHAT TO DO ABOUT COPYRIGHT WEAPONIZATION? 246 A. Reject Copyright Weaponization 246 B. Accept Copyright Weaponization to Protect Privacy 251 C. Support Copyright Weaponization to Protect Personal Interests 254 V. BLURRY LINES AND OVERLAPPING OBJECTIVES 258 VI. CONCLUSION 265 I. INTRODUCTION

Copyright grants authors exclusive rights in their works in order to encourage creation and dissemination of socially valuable works. It permits copyright owners to assert their copyright against violations of those rights when necessary to protect their market exclusivity and economic interests. Increasingly, however, copyright is being used by individuals to achieve other objectives. For instance, Harvey Weinstein's team threatened Ronan Farrow with copyright infringement to try to stop him from publishing information about Weinstein's sexual misconducts. Dr. Drew filed copyright notices to take down a video compilation featuring dismissive statements he made about COVID19. Slade Neighbors sued his ex-girlfriend for copyright infringement for disseminating his abusive text messages and emails. Netflix asserted copyright to remove negative comments about its controversial new film. Jehovah's Witnesses sued Faith Leaks for copyright infringement for leaking the organization's religious videos. Campo Santo copyright striked PewDiePie's Twitch channel to punish him for yelling a racist slur in a streaming video. Police officers played copyrighted music to complicate the ability of observers to record police conduct and share those recordings online. Pepe the Frog creator Matt Furie targeted alt-right or racist uses of Pepe with cease and desist letters and copyright infringement suits. Musicians threatened Donald Trump with copyright to stop him from using their music at campaign rallies. The photographer of the infamous image of the McCloskeys pointing their guns at Black Lives Matter protesters sent the McCloskeys a copyright demand for their use of that photograph on greeting cards. Women asserted copyright in their nude selfies to get their intimate photographs removed from revenge porn websites. All these stories have one thing in common: they all involve copyright owners using copyright to advance noncopyright interests. This Article refers to these actions as "weaponizing copyright."

This Article examines the widespread phenomenon of copyright weaponization. By granting authors exclusive rights in their works, copyright allows authors to realize financial and economic gains for their works. This is supposed to incentivize authors to create more works, which benefits society and increases dissemination of knowledge and information. This means that, in copyright's standard use, copyright owners assert their copyright against unauthorized uses of their works when necessary to preserve their market exclusivity and economic interests. (1) But that is not always the case, and it appears increasingly that copyright is being used to achieve other objectives. These other objectives do not fit within the traditional economic framings of copyright, and are unrelated to the economic incentives that copyright confers in order to incentivize creation. In some of these stories, copyright is weaponized to silence criticism and speech. In other instances, the objective is to hide and bury information. Some assertions of copyright are intended to punish or retaliate. Other assertions of copyright involve attempts to protect the copyright owner's personal reputation or dignitary rights. Another objective is to protect privacy in personal and intimate information. In none of these stories are individuals asserting copyright to protect their market exclusivity or economic interests--the intended purposes of copyright.

Through examining instances of copyright weaponization, this Article seeks to accomplish three goals. First, it exposes the widespread use of copyright for noncopyright purposes. It identifies five common noncopyright objectives that copyright owners seek to achieve through weaponization: to silence and erase facts, suppress criticism and speech, punish and retaliate, protect reputation and moral rights, and preserve privacy. Second, this Article explains how copyright became the weapon par excellence to serve these noncopyright goals, why individuals weaponize copyright instead of pursuing claims under other laws, and what the prevalence of this practice reveals about copyright's role in society today. Third, this Article attempts to challenge the presumption that weaponizing copyright is always harmful and must be discouraged, and then attempts to rely on moral intuition to judge the good weaponization from the bad weaponization. It does so by exploring the power dynamics and blurry lines between weaponization by aggressors to punish, erase, and suppress, and weaponization by the vulnerable to preserve, defend, and protect personal interests. Ultimately, this Article attempts to resolve two important questions: whether copyright should serve certain noncopyright objectives but not others, and whether there is a fair and just way to manage the increasingly pervasive practice of weaponizing copyright.

At this point, it is important to clarify two points. The first is that not all weaponized or noncopyright uses of copyright are bad, and the second is that not all typical copyright uses are good. This Article's use of the term weaponizing copyright is not intended to imply that all noncopyright uses of copyright are unjustified or in bad faith. As explored below, a weapon can be in the hand of an aggressor to cause harm and further disempower the powerless, or it can be in the hand of the vulnerable to even the playing field, upend traditional power structures, and provide safety, shelter, and resistance. In some of the noncopyright objectives explored below, copyright is weaponized by individuals in a more powerful position to silence, suppress, and further subjugate. In others, this power dynamic shifts when copyright is weaponized by the vulnerable or traditionally defenseless to protect themselves from harm. Therefore, for the purpose of this Article, weaponizing copyright refers to uses of copyright to achieve noncopyright objectives, regardless of whether the reasons for those uses may seem justified. Furthermore, there is no denying that there are many other problematic and abusive uses of copyright, such as overreaching copyright claims, copyright trolling, anticompetitive uses of copyright, or even abusive claims of copyright over employee creations. (2) However, these uses of copyright are ultimately driven by preserving market exclusivity and economic interests. Therefore, even though these uses can be problematic, harmful, or abusive, they are nevertheless excluded from this Article's analysis because they are not advanced for noncopyright purposes.

This Article proceeds as follows. Part II defines weaponizing copyright, identifies recent or older high-profile instances of this behavior, and briefly touches on the harms posed by copyright weaponization. It categorizes instances of copyright weaponization based on the noncopyright objectives that individuals seek to achieve, and explores the five common objectives that copyright owners pursue in weaponizing copyright: to silence and erase facts, to suppress and censor criticism and speech, to punish and retaliate, to protect reputation and dignity, and to preserve privacy. Part III explains why, in all the described instances of copyright weaponization, individuals rely on copyright instead of pursuing other legal claims to achieve their objectives. This includes acknowledging copyright's expansive role in society today, and explaining why copyright is superior to other legal solutions for achieving noncopyright objectives. Part IV surveys three common approaches to handling assertions of copyright for noncopyright purposes. It critically examines the benefits and concerns with each approach, and highlights the difficulties in creating a fair and just legal framework to discourage copyright weaponization without inadvertently foreclosing the ability of vulnerable members of society to defend themselves from harm. Finally, Part V highlights the complications with attempting to categorize copyright weaponization based on overlapping objectives or motives. This Part uses examples from Part II to demonstrate the difficulties with drawing clear lines between different forms of copyright weaponization, and the problems with attempting to map legal frameworks onto blurry and uncertain moral intuitions.

  1. WEAPONIZING COPYRIGHT

    Copyright encourages the creation and dissemination of socially valuable works to "promote the Progress of Science and useful Arts." (3) It does so by promising a copyright owner market exclusivity in their creative works. (4) Therefore, when we envision a typical copyright infringement dispute it might involve, for instance, a copyright owner...

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