The New ©ensorship

Abstract

Copyright law has become the weapon par excellence of the 21st-century censor. Fueled by a desire to prevent one’s perceived foes from making certain types of speech, an individual has no better friend. Copyright violations are ubiquitous. Liability can be massive. Copyright suits are difficult to fend off. And, perhaps most saliently to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses. Whether it is a creationist group using the Digital Millennium Copyright Act to force the takedown of critical materials put online by evolutionists, abortion-rights activists using copyright litigation to enjoin speech by pro-life forces, or a political commentator vindicating his exclusive rights to recordings of his shows to suppress criticism of a hate-filled rant, examples of this disingenuous use of copyright law abound. After surveying the growing use of copyright law for the purposes of censorship, this Article examines just how this trend undermines both the vitality of our copyright regime and public discourse; how some courts have attempted to deal with this problem through the use of procedural machinations, including early adjudication of cases through motions to dismiss; and how the law might better respond as a whole to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to serve as a transparent proxy to censor cultural or political opponents.

Keywords: Copyright, First Amendment, Censorship, New York Times v. Sullivan, Anti-SLAPP, DMCA