F(r)ee Expression? Reconciling Copyright and the First Amendment

33 Pages Posted: 19 Dec 2006 Last revised: 20 Jul 2021

See all articles by Raymond Shih Ray Ku

Raymond Shih Ray Ku

Case Western Reserve University School of Law

Date Written: 2007

Abstract

This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, this essay suggests that efforts to minimize free speech concerns in copyright cases by relying upon the Framers' intent beyond Harper & Row and Eldred represent copyright Lochnernism.

Keywords: First Amendment, copyright, free speech, Harper & Row, Eldred, Framers' intent

JEL Classification: K19, K39

Suggested Citation

Ku, Raymond Shih Ray, F(r)ee Expression? Reconciling Copyright and the First Amendment (2007). 57 Case Western Reserve Law Review 863 (2007), Case Legal Studies Research Paper No. 06-25, Available at SSRN: https://ssrn.com/abstract=952374

Raymond Shih Ray Ku (Contact Author)

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
155
Abstract Views
1,391
Rank
343,582
PlumX Metrics