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20 UCLA J.L. & Tech. [i] (2016)

handle is hein.journals/ujlt20 and id is 1 raw text is: Spring 2016 www.lawtechjournal.com Volume 20, Issue 1 UCLA Journal of Law & Technology COPYRIGHT TO THE RESCUE: SHOULD COPYRIGHT PROTECT PRIVACY? Deidre A. Keller1 I. IN T R O D U C T IO N ..........................................................................................................................1 II. RECENT PRIVACY CASES BROUGHT UNDER THE GUISE OF COPYRIGHT CLAIMS ......................3 III. PRIVACY LAW, IN BRIEF...........................................................................................................7 A . G eneral P rincip les .................................................................................................................7 i. P riv acy is P erso n al............................................................................................................8 ii. The Privacy Tort and the Constitutional Right to Privacy are Distinct ............................8 B . C onstitutional Protections .....................................................................................................8 i. D ecisio n al P riv acy ............................................................................................................9 ii. Reasonable Expectation of Privacy ................................................................................11 iii. The First Amendment and Privacy .................................................................................12 iv. Constitutional Privacy Protections: A Brief Wrap-Up ...................................................15 C . T he Invasion of Privacy T ort ..............................................................................................16 1 Professor of Law at Ohio Northern University. I am grateful to have been invited by Jeremy Sheff to present an early draft of this paper at the St. John's IP Colloquium in April 2015. It was a pleasure to engage with the students and faculty who participated. A draft of this Article was also presented at the 39th Annual Law Review Symposium at Ohio Northern University. I was humbled to be invited by Joshua Lanphear, Editor-in-Chief of the Ohio Northern University Law Review, and Kourtney Brueckner, Symposium Editor. The conversations that took place that day certainly shaped my thinking as I was revising this piece and I am grateful to have had them. Additionally, I am indebted to Eva Subotnik for her continued interest in this project and her comments at various stages. And, I also must thank Lateef Mtima, Anjali Vats, Joanne Brant, and Stephen Veltri, all of whom provided encouragement along the way. I am also indebted to Pamela Samuelson who offered comments on a draft, and to Ken Gormley who I had the pleasure of meeting at a conference at Duquesne. My conversation with then Dean Gormley had a singularly influential impact on my thinking about privacy as a jurisprudential concept. This project never would have been completed without the help I received from my research assistants, Christopher Todd Mosley, Laura Waymire, Eden Adkins, and Jennifer English. All errors and omissions are mine alone. Finally, I must thank my family: my husband, whose patience, consistency, and competence make it possible for me to do the work and whose love for me sustains me; my sister, whose belief in me is unwavering; and my children, MJ, Kiarra, Damon, Orion, Eon, and Reggie who are my inspiration, always.

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