A Free Speech Theory of Copyright
28 Pages Posted: 22 Sep 2008 Last revised: 31 May 2012
Date Written: September 19, 2008
Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright's built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of Copyright Clause's limits as free speech limits, giving them the force of an individual right.
Keywords: Copyright, First Amendment, Freedom of Speech, Fair Use, Eldred
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