The Case for First Amendment Limits on Copyright Law

Abstract

Scholars have felled many trees arguing for First Amendment limits on copyrights. Yet this outpouring of scholarship has been notably unsuccessful in wining judicial converts. While there have been occasional lower court decisions which have invoked First Amendment limits on copyrights, for the most part, courts have been unreceptive to the idea. Leading the way has been the Supreme Court which barely gave lip service to First Amendment rights in two high profile cases.

In this short article, I try to bridge this gap between the scholarship and the jurisprudence. My goal is to present as clearly as possible the theoretical arguments for First Amendment limits on copyright. I also provide guidelines for how judges can determine when copyright law should be declared unconstitutional.

Keywords: first amendment, copyright, constitutional law

JEL Classification: K1, K10