Freedom of Speech and Appellate and Summary Judgment Review in Copyright Cases

Yale Law Journal, Vol. 107, No. 5 (1998)

Posted: 8 Dec 1997

See all articles by Eugene Volokh

Eugene Volokh

University of California, Los Angeles (UCLA) - School of Law

Brett McDonnell

University of Minnesota Law School

Abstract

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.

Suggested Citation

Volokh, Eugene and McDonnell, Brett H., Freedom of Speech and Appellate and Summary Judgment Review in Copyright Cases. Yale Law Journal, Vol. 107, No. 5 (1998). Available at SSRN: https://ssrn.com/abstract=51398

Eugene Volokh (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States
310-206-3926 (Phone)
310-206-6489 (Fax)

Brett H. McDonnell

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-625-1373 (Phone)

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