Abstract

http://ssrn.com/abstract=2293108
 


 



First Amendment Constraints on Copyright after Golan v. Holder


Neil Weinstock Netanel


University of California, Los Angeles (UCLA) - School of Law

July 1, 2013

UCLA Law Review, Vol. 60, No. 5, 2013
UCLA School of Law Research Paper No. 13-22

Abstract:     
Commentators have depicted the Supreme Court's January 2012 ruling in Golan v. Holder as a far-reaching repudiation of First Amendment limits on Congress's power to expand copyright and diminish the public domain. However, Golan imposes potentially significant First Amendment constraints on copyright protection even while granting fairly broad First Amendment immunity to Copyright Act amendments. It does so by effectively adopting Melville Nimmer's "definitional balancing" approach to resolving the tension between copyright and the First Amendment, an approach that Frederick Schauer has labeled "definitional-absolutism" because it requires an absolute First Amendment privilege for protected speech. As Golan applies that approach, neither Congress nor courts may "disturb" copyright law's idea/expression dichotomy or fair use privilege without running afoul of the First Amendment. Accordingly, following Golan, Copyright Act provisions and proposed legislation that would diminish one or both of those free speech safeguards remain vulnerable to First Amendment challenge. Examples include the anti-circumvention provisions of the DMCA and proposed legislation, such as the now-defunct SOPA, that would impose broad liability on Internet intermediaries. Further, Golan requires that courts interpret and apply the idea/expression dichotomy and fair use privilege in a manner that truly safeguards First Amendment rights.

Number of Pages in PDF File: 47

Accepted Paper Series


Download This Paper

Date posted: July 16, 2013 ; Last revised: July 26, 2013

Suggested Citation

Netanel, Neil Weinstock, First Amendment Constraints on Copyright after Golan v. Holder (July 1, 2013). UCLA Law Review, Vol. 60, No. 5, 2013; UCLA School of Law Research Paper No. 13-22. Available at SSRN: http://ssrn.com/abstract=2293108

Contact Information

Neil Weinstock Netanel (Contact Author)
University of California, Los Angeles (UCLA) - School of Law ( email )
385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
Feedback to SSRN


Paper statistics
Abstract Views: 1,034
Downloads: 190
Download Rank: 91,171
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo6 in 0.547 seconds