Monday, May 21, 2012

Christina Bohannan: Copyright Infringement and Harmless Speech

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 (, a registered patent agent, research assistant to Sarah Tran, and a 2014 Juris Doctor candidate at SMU Dedman School of Law.

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