Copyright provides an incentive to encourage the spread of new expression, while the first amendment removes roadblocks in the way of dissemination. Copyright and the first amendment co-exist to allow new ideas to be created and disseminated. Chilled chaos drawit free#“It should not be forgotten that the Framers intended copyright itself to be the engine of free expression,” wrote the Supreme Court in Harper & Row v. While this point is lost to free speech critics, US courts recognize it — first amendment defenses to copyright infringement actions are consistently rejected in lawsuits. And rather than standing in contradiction to each other, the first amendment and copyright law work in tandem to protect the free speech interests of both sides. He recognizes what many free speech critics of copyright don’t: free speech interests lay on both sides of the copyright owner-copyright user divide. So says William Patry, one of the leading experts in the US on copyright law. “Once it is decided … that the First Amendment operates in the copyright arena, it should be realized that it is a two-way street, for the copyright owner also has First Amendment rights.” 4 William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985). Today I want to take a closer look at this discussion, one I broached before in Artistic Expression, the First Amendment, and Copyright. 3 One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). What’s missing from these arguments, however, is any discussion about the free speech rights of copyright owners. By and large, the consensus is that the restriction exists, and something needs to be done about it. Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001)  Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002)  Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). Ray Patterson, Free Speech, Copyright, and Fair Use, 40 Vanderbilt Law Review 1 (1987)  Diane Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 William & Mary Law Review665 (1992)  Neil Netanel, Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996)  Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998)  Eugene Volokh & Brett McDonnell, Freedom of Speech and Independent Judgment Review in Copyright Cases, 107 Yale Law Journal 2431 (1998)  Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 New York Univ. 2 Just a few of the articles: Paul Goldstein, Copyright and the First Amendment, 70 Columbia Law Review 283 (1970)  Melville Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA Law Review 1180 (1970)  Lionel Sobel, Copyright and the First Amendment: A Gathering Storm?, 19 Copyright Law Symposium 43 (1971)  Robert Denicola, Copyright and Free Speech: Constitutional Limitations on the Protection of Expression, 67 California Law Review 283 (1979)  L. The past few decades have seen a ton of academic scholarship devoted to this critique. The “free speech critique” of copyright can essentially be summed up as this: “Copyright law restricts speech: it restricts you from writing, painting, publicly performing, or otherwise communicating what you please.” 1 Mark Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147 (1998). I’ve previously addressed such arguments as they related specifically to COICA and domain name seizures. Activist groups like the EFF, Public Knowledge, and the Center for Democracy & Technology are  quick to raise the issue at the first sign of any proposal or effort to protect copyright rights. A common criticism of copyright law or its enforcement is that it doesn’t adequately protect first amendment rights.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |