Locating Copyright Within the First Amendment Skein

Abstract:     
The possibility of imposing First Amendment limitations on copyright owner rights has arisen numerous times in U.S. case law, legislation, and commentary. Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. In taking this position, courts have regularly cited early commentators, who, after exploring possible areas of conflict between copyright and the First Amendment, concluded that the conflict is largely ameliorated by the fair use doctrine, copyright law's distinction between copyrightable expression and uncopyrightable fact and idea, and copyright's limited term.

I argue in this Article that the courts have consistently gotten it wrong. In steadfastly following early commentary, they have largely ignored subsequent developments in both copyright law and First Amendment doctrine. As copyright law has metamorphisized over recent decades, copyright owner prerogatives have become increasingly bloated, raising serious questions about their need and fit for copyright's incentive-for-original-expression rationale and imposing an increasingly onerous burden on speech. And in parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny.

I argue that, in line with prevailing First Amendment doctrine, copyright law constitutes content-neutral speech regulation and should be subject to intermediate scrutiny. Copyright law, however, falls within an emerging subcategory of content-neutral regulation. That subcategory consists of government regulation that distributes speech entitlements among prospective speakers, thus giving rise to a suspicion of successful rent-seeking by the highly organized interests to whom the entitlements are granted. In such instances what appears to be courts' implicit suspicion of improper government motive has sometimes led, and ought to lead, to a more rigorous, searching application of intermediate scrutiny than is often otherwise the case.

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