Copyright and Breathing Space

Abstract:     
According to the U.S. Supreme Court, copyright law's fair use and idea/expression doctrines are "built-in free speech safeguards" that establish a "definitional balance" between copyright and the First Amendment. Yet these "built-in free speech safeguards" are among the most uncertain and ill-defined doctrines in all of copyright law. If we accept the Supreme Court's statement that these doctrines play a critical role as First Amendment safety valves, it follows that the chilling effect of uncertainty in these doctrines has a constitutional dimension. Current copyright law doctrine, however, fails to take into account the potential chilling effect of copyright liability. This is in sharp contrast to other areas of law, such as defamation, in which the U.S. Supreme Court has expressly accounted for the chilling effect of potential liability by making substantive and procedural alterations to the law in these areas. In this Article, I argue that a similar approach is warranted in copyright law. To the extent copyright's internal safety valves are necessary to prevent a conflict with free speech interests, courts should expressly take into account the need for breathing space, as they do in other areas.

Keywords: Eldred v. Ashcroft, copyright law, fair use doctrine, free speech

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