Freedom of Speech and Appellate and Summary Judgment Review in Copyright Cases
Yale Law Journal, Vol. 107, No. 5 (1998)
Posted: 8 Dec 1997
Copyright law, the Supreme Court has said, is a valid speech restriction. But even valid speech restrictions (such as libel law, obscenity law, and the like) are still subject to the various "First Amendment Due Process" procedural rules. One of them is the Bose Corp. v. Consumers Union independent appellate review rule: When a jury or a trial judge finds that speech falls within an unprotected category of speech, the court of appeals must review that finding de novo, rather than just for clear error. The same also applies on motions for summary judgment and for judgment notwithstanding the verdict.
In copyright cases, though, the courts of appeal generally review findings that speech copies expression, and not just idea, only for clear error. This, we argue, presumptively violates the Bose rule; and, we argue, there's no significant difference between copyright law and the other speech restrictions that rebuts this presumption. The copyright law clear error review rule must give way to the First Amendment-mandated de novo review rule.
From this doctrinal point, we draw two broader points: (1) At least according to First Amendment theory, independent appellate review is supposed to refine the legal tests, making them clearer and more predictable. If that hypothesis is true, this could be particularly valuable for copyright's "idea-expression" dichotomy, which is notoriously vague. (2) On the other hand, if it's false - if we end up being skeptical about the value of independent review in clarifying the idea-expression test -- this might give us reason to think again about independent appellate review, and perhaps First Amendment Due Process more generally.
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