Copy This Essay: How Fair Use Doctrine Harms Free Speech and How Copying Serves It
2004; The Yale Law Journal Company; Volume: 114; Issue: 3 Linguagem: Inglês
10.2307/4135692
ISSN1939-8611
Autores Tópico(s)Copyright and Intellectual Property
ResumoA. What Free Speech Is For I wish to make what I hope is a rather modest claim: The current version of copyright, in which free speech problems are solved by keeping copyright owners from controlling certain transformative uses but in which more ordinary unauthorized copying is prohibited, is incompatible with the First Amendment.This is true whether one understands the First Amendment as protecting political speech, promoting democracy or selfgovernment, furthering the search for truth, or enhancing autonomy and enabling self-expression.These descriptions are necessarily incomplete.Most important, my discussion does not address the First Amendment as a purely negative right, protecting speakers from government action based on their speech.Yet if the First Amendment bars only government action, then copyright law itself ought to be unconstitutional as a government restriction on some speakers in order to improve the relative position of others. 1 Rather than defend a particular view of the First Amendment, I hope to offer examples in which copyright law conflicts with free speech as it is understood by a variety of theories.Most obviously, I defend copying as a method of self-expression and self-definition consistent with autonomybased accounts of freedom of speech.My argument also often refers to copying in service of democratic self-governance, which is the purpose of free speech identified by many current theorists of copyright and the First Amendment, including Jack Balkin, Yochai Benkler, and Neil Netanel. 2 1. See Rebecca Tushnet, Copyright as
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