Should copyright law be
subject to the same harm requirements as other speech-regulating restrictions?
In her article, Copyright Infringement and Harmless Speech, Professor Christina Bohannan persuasively argues that
without a harm requirement, copyright law unnecessarily suppresses copying that
would otherwise enhance democratic governance by increasing access to creative
and informative works. To support this argument, Professor Bohannan methodically
explains how First Amendment case law can supplant the vagaries of fair use or
statutory litigation to protect important free speech values.
Copyright law exists as an exception
to the rule that government may not prohibit speech without a showing of harm. Copyrights
are granted to encourage the creation and dissemination of ideas and
expression. Copyrights can be analogized to personal property; and
like personal property, a showing of harm must be made to recover for damages.
If fair use and other statutory provisions cannot be substantially modified to
implement a meaningful harm requirement, the First Amendment can offer guidance
on how to reign in copyright law.
Under First Amendment
protections, it would matter little whether a copyright law is content-based or
content-neutral. Either designation would require the copyright holder to show
that the defendant’s use of copyrighted material is likely to cause harm
sufficient to reduce the copyright holder’s ex ante incentives to innovate. Using
First Amendment scrutiny, courts should determine whether the defendant’s use
of copyrighted material is likely to cause harm sufficient to reduce a
copyright holder’s incentives to create or disseminate copyrighted works. But
what kind of copyright harms are likely to be protected by the First Amendment?
The easiest identifiable
harm covered by the First Amendment is economic injury due to market
substitution. More challenging questions involve alleged damage done by
nonmarket activity. Transformative works that criticize, disparage, or create
unwelcomed associations can be seen as “copyright dilution,” creating
reputational or image related harm. But allowing copyright holders to suppress artistic
expression in order to maintain their image would violate the First Amendment’s
purpose to foster a robust and diverse marketplace of ideas. Also unpersuasive,
subject to one caveat, is a copyright holder who alleges harm based on his
First Amendment right not to speak. Excluding unpublished works, the use of a
copyrighted work should not violate the copyright holder’s right to remain
silent, unless a defendant has taken affirmative steps to mislead the public as
to the copyright holder’s affiliation with the defendant’s use. Finally, the
First Amendment greatly restrains the ability for a copyright holder to claim an
invasion of privacy due to an unauthorized use of her work. The First Amendment
does not permit people to precisely control the amount of publicity they
receive, regardless of whether it is unwanted or done for commercial gain.
Copyright Infringement and Harmless Speech is replete with First
Amendment case law supporting Professor Bohannan’s assertion. Interestingly, more people are starting to
realize the detrimental effects of broad copyright law. As the battle over copyright invades the
Internet, recent legislative acts have attracted significant attention. The
Stop Online Piracy Act (SOPA) and the Senate’s corollary, Protect IP Act (PIPA),
have both been offered as a way to bolster American
intellectual property. Yet opponents of
these bills fear that the bills copyright protections are exceptionally broad and
will threaten free speech and innovation. See, e.g., Lemley et al., Don’t Break the Internet, 64 Stan. L. Rev. Online 34 (2011). Perhaps more people will look to the First
Amendment for free speech protection as the effects of copyright become more
invidious.
Posted by Bryan Parrish (bparrish@smu.edu), a registered
patent agent, research assistant to Sarah Tran, and a 2014 Juris Doctor candidate at SMU Dedman
School of Law.
