Copyright Under Siege: The First Amendment Front
22 Pages Posted: 21 Jun 2016
Date Written: 2004
Over the past decade, the law of copyright - traditionally an arcane and obscure specialty - has evolved into an extraordinarily controversial legal arena. To a significant extent, though not exclusively, this has been caused by the emerging clashes between copyright on the one hand and digital technology and the internet on the other. Some see copyright as the aggressor in the copyright wars, guilty of threatening the digital revolution, the internet, information policy, privacy, freedom of speech and the public domain. Much of this assault on copyright is culturally driven by the Internet's champions. Inevitably, this cultural challenge is now duly reflected in legal argument as well. As copyright law has generated more and more controversy, several legal scholars have come forth to challenge the traditional reconciliation of copyright and freedom of speech.
Among the aforementioned scholars, whom the author will collectively refer to as the "free speech critics", virtually all of them reject the traditional reconciliation of copyright and freedom of speech - though some do believe that the two fields can be harmonized on other grounds. While the author regards this genre of scholarship as quite thought-provoking, to the extent that it rejects the traditional reconciliation of copyright and freedom of speech, he ultimately finds it unpersuasive. Fortunately, he is not alone; so does the United States Supreme Court, as well as nearly every other federal court that has had occasion to consider the issue.
In a nutshell, this article argues that the Court's recent opinion in Eldred v. Ashcroft should properly be read as the resounding rejection of practically all of the modem first amendment-based copyright challenges. The time has come for the free speech critics to return to the drawing board and, if anything, re-examine free speech doctrine rather than copyright. Moreover, and contrary to recent criticism, the Court's re-endorsement of the traditional reconciliation of copyright and free speech is correct, sensible, and persuasive.
Keywords: Copyright, First Amendment, Eldred v. Ashcroft, free speech, Copyright Term Extension Act of 1998, CTEA, Digital Millennium Copyright Act, DMCA, Supreme Court
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