Copyright and First Amendment after Eldred v. Ashcroft
6 Pages Posted: 30 May 2009 Last revised: 26 Jun 2009
Date Written: 2006
The Supreme Court's 2003 opinion in Eldred v. Ashcroft was the Court's first comprehensive attempt to address the intersection of copyright and the First Amendment the question whether federal copyright law violates the Amendment by abridging the freedom of copyright infringers to reproduce and publish copyrighted material without the permission of the copyright owner. In Eldred, the Supreme Court rejected the suggestion that federal copyright laws are completely immune from First Amendment attack, but refused to subject the application of the term extension to existing copyrights to any form of First Amendment heightened scrutiny. The Court resolved the case solely on the basis of the Constitution's Copyright Clause. This article argues that the Court's decision generally points in the right direction, however, the Court's analysis presents practical and theoretical difficulties. In concluding that copyright and the First Amendment do not generally conflict, the Eldred opinion pays too little attention to the fact that the vast majority of infringements that federal copyright law prohibits do not at all involve the sort of free expression that the First Amendment is designed to protect and too much attention to copyright tradition.
Keywords: First Amendment, copyright, intellectual property
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