Copyright and the First Amendment; What Eldred Misses - and Portends

36 Pages Posted: 3 Nov 2004

See all articles by Neil Weinstock Netanel

Neil Weinstock Netanel

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


This chapter, to be published as part of an anthology about copyright and free speech in the U.S., U.K. and Continental Europe, critically assesses the First Amendment portion of the U.S. Supreme Court's decision in Eldred v. Ashcroft. In rejecting Eldred's challenge to the Copyright Term Extension Act, the Court held that when "Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." In so holding, the Court put to rest the D.C. Circuit's sweeping suggestion that "copyrights are categorically immune from challenges under the First Amendment." But the Court largely (although not entirely) closed the door to First Amendment challenges to "traditional" copyright, thus perpetuating courts' persistent and anomalous refusal to apply to copyright the First Amendment scrutiny regularly applied to other speech burdening private rights. No less disappointing than the Court's holding is its reasoning. Eldred shows remarkably little understanding of, or appreciation for, the First Amendment values at stake in copyright's burdening of speech. And the majority's opinion gives further credence to lower court justifications for exonerating copyright from First Amendment review, some of them no less doctrinally and logically unsound than the broad statement that copyrights are categorically immune from First Amendment challenge.

Yet, despite the Court's abjuration of First Amendment scrutiny for traditional copyright, the decision leaves room for the First Amendment both to inform copyright jurisprudence and oversee some Copyright Act amendments. Most broadly, in rejecting (or at least qualifying) copyright's categorical immunity, the Court explicitly recognized that, in principle, copyright does implicate the First Amendment. And, in that vein, the Court then suggested some specific ways in which the First Amendment might yet circumscribe copyright holder prerogatives. These include First Amendment scrutiny of Copyright Act amendments, such as the anticircumvention provisions of the Digital Millennium Copyright Act, that do alter copyright's traditional contours. In addition, the Court suggested that copyright's internal free speech safeguards, including the fair use privilege and idea/expression dichotomy, should be broadly construed to accommodate First Amendment concerns. Courts are understandably disinclined to adopt rules that would require them to entertain First Amendment defenses to individual copyright infringement actions. But taking Eldred as a starting point, I suggest some ways in which courts could bring the First Amendment to bear on copyright doctrine by implementing specific and tightly-focused substantive and remedial rules and evidentiary presumptions designed to protect free speech without requiring a case-by-case adjudication of First Amendment principles.

Keywords: Eldred v. Ashcroft, First Amendment, free speech, copyright, U.S. Supreme Court

Suggested Citation

Netanel, Neil Weinstock, Copyright and the First Amendment; What Eldred Misses - and Portends. Available at SSRN:

Neil Weinstock Netanel (Contact Author)

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

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