Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of the Copyright Clause’s limits as free speech limits, giving them the force of an individual right.
Introduction
If the general case for copyright is an uneasy one, the case for copyright in light of the First Amendment is harder still. How can a body of law that functions to empower private actors to restrict expression be accommodated within a constitutional order so committed to the liberty of the mind? To date, the answers to this question have been unsatisfactory, primarily because they fail to properly appreciate the constitutional balance struck between the Copyright Clause and the First Amendment—or so I will argue.
My negative claim is that most attempts to square copyright with free speech suffer from one of two shortcomings. Some rely on the definitional coherence between free speech and copyright to conclude that copyright laws as they exist are presumptively constitutional and that the First Amendment is only implicated when Congress “alter[s] the traditional contours” of copyright law. But this approach confounds consistency in principle and consistency in practice, and it cannot provide sufficiently meaningful free speech limits on copyright. Others doubt copyright’s “built-in First Amendment accommodations” and instead attempt to build free speech limits from the ground up. But doing so ignores the constitutional balance struck at the Framing, treating copyright like any other restriction on expression.
The Copyright Clause itself, I will argue, is an expression of First Amendment values, and it ought to be enforceable as such. In other words, the clause’s internal limits—including, for example, originality —are not merely the formal boundaries of congressional power under the Copyright Clause but are instead free speech principles that warrant careful application. In some ways, this free speech theory of copyright is unremarkable, since it is consistent with the Court’s view that “the Framers intended copyright itself to be the engine of free expression.” At the same time, the free speech theory of copyright helps answer a number of complicated questions, from whether Congress can appeal to commerce or treaty powers to avoid Copyright Clause limits (it can’t) to whether the Court’s “traditional contours” approach in Eldred v. Ashcroft is consistent with its suggestion that copyright embodies free speech values (it isn’t).
Part I explains why attempts to describe the First Amendment limits on copyright have thus far fallen short. I begin with a taxonomy of these attempts. Arguments ultimately fail in one of two ways, which I label, for simplicity, “accommodationism” and “unexceptionalism.” The accommodationists overemphasize the Framers’ vision of consistency between copyright and free speech, whereas the unexceptionalists seem to ignore the constitutional balance altogether. Missing in these dueling accounts is an approach to Copyright Clause limits that embraces copyright as the engine of free expression, resisting the unexceptionalist impulse to treat copyright like any other kind of law, while recognizing the fact that Copyright Clause limits exist to protect free expression.
Part II outlines a free speech theory of copyright, which is an attempt to fill in this gap. I argue that the Copyright Clause imposes limits on congressional power that embody free speech principles, and these limits are a necessary condition—both historically, as a description of the motivations of the Framers, and analytically—for the coherence of copyright law and the First Amendment. The clause’s limits are thus in a real sense free speech protections, and they should be enforced as such. Having established the importance of Copyright Clause limits, I describe how each of them ought to be applied in practice.
Part III considers the implications of the free speech theory of copyright for a central issue of constitutional copyright law: whether and how the Copyright Clause’s limits apply externally to other enumerated powers. This issue is made especially salient by recent challenges to copyright-like laws concededly inconsistent with the Copyright Clause that have been passed pursuant to either the Commerce Clause or the Treaty Clause.
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