Liberating Copyright: Thinking Beyond Free Speech

Abstract:     
Scholars have often turned to the First Amendment to limit the scope of ever-expanding copyright law. This approach has mostly failed to convince courts that independent review is merited and has offered little to individuals engaged in personal rather than political or cultural expression. In this Article, I consider the value of an alternative paradigm using the lens of substantive due process and liberty to evaluate users’ rights. A liberty-based approach uses this other developed body of constitutional law to demarcate justifiable personal, identity-based uses of copyrighted works. Uses that are essential for mental integrity, intimacy promotion, communication, or religious practice implicate fundamental rights. In such circumstances the application of copyright law deserves heightened scrutiny. The proposed liberty-based approach shores up arguments that some personal uses should be lawful and suggests that such uses should not be limited to those that are private and not for profit.

Number of Pages in PDF File: 73

Keywords: copyright, intellectual property, constitutional law, liberty, privacy, substantive due process, fair use, free speech, first amendment, identity, personal uses, personhood

JEL Classification: K10, K11, K12, K13, K39, O34

Accepted Paper Series