First Amendment Limits on Copyright

Although the tension between copyright and the First Amendment has long been noted and increasing numbers of First Amendment challenges to copyright have recently been filed, few scholarly commentaries have gone beyond relatively narrow attempts at doctrinal accommodation. Under the assumption either that existing copyright law fully accommodates First Amendment interests or that some balance is appropriate, commentators have avoided any principled exploration of the full force of First Amendment principles. This Essay aims to fill that gap. Rather than use mechanical doctrine to evaluate existing copyright law, this Essay begins with a theoretical approach to the First Amendment and then works out its full implications for the permissible reach of copyright.

Al- though this approach reaches quite radical conclusions about limiting the scope of copyright, the remaining scope is both quite consistent with the original reach and role of copyright and would lead copyright to more appropriately serve its purported goal of being an engine of free expression.