Eldred, the First Amendment, and Aggressive Copyright Claims

Abstract:     
This Essay studies the effect of Eldred v. Ashcroft on the treatment of aggressive copyright claims. Aggressive copyright claims test the boundaries of copyright by urging courts to adopt unconventional or novel readings of doctrine that would extend copyright well beyond its core of preventing individuals from reproducing the copyrighted works of others. Accordingly, aggressive copyright claims are often made against defendants who have done more than simply "parrot" a copyrighted work. These defendants have generally added meaningful work of their own, whether in the form of comment and criticism, significant reworking of the plaintiff's material, or new material unrelated to the copyrighted work. At their most extreme, aggressive copyright claims assert that almost any borrowing from a copyrighted work constitutes actionable infringement.

Aggressive copyright claims are interesting because they illustrate the tension between copyright and the First Amendment. A defendant who combines original speech with material borrowed from a copyrighted source may commit infringement, but this does not mean that no free speech problems exist. Copyright judgments generally include injunctions that effectively prevent the defendant from publishing or disseminating any original speech contained in the infringing work. Aggressive copyright claims often raise significant First Amendment problems because they tend to be brought against defendants whose alleged infringements contain a significant amount of new speech. Unfortunately, courts have been overly receptive to aggressive copyright claims, at least in part because conventional wisdom states that courts can safely ignore First Amendment concerns in copyright because copyright doctrine somehow "naturally" takes account of First Amendment values.

The Essay criticizes this conventional wisdom because it supports the success of aggressive copyright claims that do little to advance copyright's fundamental purposes. It goes on to argue that conventional wisdom must be changed, and that the Supreme Court has begun this process by recognizing the First Amendment's importance to copyright in the Eldred opinion. The Essay concludes by showing how proper recognition of the First Amendment in copyright affects the treatment of aggressive copyright claims.

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