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Copyright Law and Free Speech after Eldred V. Ashcroft

56 Pages Posted: 29 Apr 2003 Last revised: 16 Apr 2017

Michael Birnhack

Tel Aviv University - Buchmann Faculty of Law

Date Written: 2003


Eldred v. Ashcroft, as decided by the Supreme Court in January 2003 added another chapter regarding the relationship between copyright law and freedom of speech to the judicial "chain novel" that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (CTEA), which extended the copyright term by twenty years: both for existing works and for new works. The Court reached the conclusion that there is no conflict between the two legal fields, and repeated the judicial sound bite that "[t]he Framers intended copyright to be the engine of free expression." Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer new directions, or at least a potential for redirection. This article locates Eldred within the "conflict discourse."

The critique is structured along the lines of an important distinction. When we ask what it is that the courts have been rejecting, a close study of over thirty cases which addressed the conflict teaches us that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: One is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.
The internal view confines itself to the borders of copyright law: the familiar tension between the public and the individual author; between the lofty goal of copyright of promoting the progress and the earthly means that it applies to achieve this goal. The external view conceives the alleged conflict as a collision between two separate areas of law on the constitutional level: the grant of power to Congress to enact copyright legislation, and the First Amendment.

In most cases, courts fail to distinguish between the two kinds of conflict and address only one of them, or, in some cases, confuse them altogether. Once we observe that there are two kinds of conflict, and that they are often confused or not even recognized, we can rephrase the conflict argument and its denial. The conflict argument aims mainly at the external level. The typical judicial response refuses to acknowledge the external level and keeps drawing us back to the internal level. The rejection of the conflict argument thus internalizes the discussion of the conflict.

Eldred is no exception. The plaintiffs raised arguments on both the internal and external levels. The internal, copyright argument was rejected due to the Court's deference to Congress. The external, free speech argument was internalized, but with drawing some crucial lines, which are explored in the article.

Keywords: copyright law, constitutional dimension thereof, Eldred v. Ashcroft, freedom of speech, First Amendment

Suggested Citation

Birnhack, Michael, Copyright Law and Free Speech after Eldred V. Ashcroft (2003). 76 University of Southern California Law Review, 1275-1330 (2003). Available at SSRN: or

Michael D. Birnhack (Contact Author)

Tel Aviv University - Buchmann Faculty of Law ( email )

Ramat Aviv
Tel Aviv 69978, IL
+972-3-640-6623 (Phone)

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