Some Realism About the Free Speech Critique of Copyright

37 Pages Posted: 14 Nov 2005

See all articles by David McGowan

David McGowan

University of San Diego School of Law


This article examines from a legal realist point of view the free speech critique of copyright - a cluster of arguments designed to encourage courts to use free speech principles to limit the length and scope of copyright laws, and to give defendants (especially transformative ones) a boost in infringement litigation. The article points out that the free speech critique needs to treat copyright and infringement suits as state action, and tends to treat users as dependent upon, and potentially oppressed by, rights-holders. Both moves - collapsing the public-private distinction and denying the autonomy of individuals - are legal realist staples. By contrast, however, free speech doctrine cannot work without a clear notion of private action and of individual autonomy. Applied consistently, the critique's premises would disable the doctrines they are designed to invoke. In addition, the critique does not turn its realism on free speech doctrine, which has become highly formal. Though the critique contains some wonderfully creative and erudite arguments, these problems are too much for it to overcome.

Suggested Citation

McGowan, David, Some Realism About the Free Speech Critique of Copyright. Fordham Law Review, Vol. 74, p. 101, 2005, San Diego Legal Studies Paper No. 07-21, Available at SSRN:

David McGowan (Contact Author)

University of San Diego School of Law ( email )

5998 Alcala Park
San Diego, CA 92110-2492
United States

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