by Mike Masnick
There is a growing number of scholars questioning how to align the First Amendment’s rule that “Congress shall make no law… abridging the freedom of speech….” with intellectual property law that often does, in fact, abridge freedoms of speech. I’m in the middle of reading an entire book on the subject — which I’ll be reviewing here shortly. And, just recently, we saw a court (for the first time) note that parts of copyright law were unconstitutional due to the First Amendment. Law professor Peter Friedman points us to the latest of many recent treatises on the subject, by Christina Bohannan, entitled Copyright Harm and the First Amendment, which questions why copyright law does not require any showing of “harm” to get around the First Amendment issue.
Other laws — such as defamation — require that in order to adbridge the freedom of speech, harm needs to be shown. And that seems like a reasonable condition. Bohanan agrees and suggests, not just that copyright law should be changed to include a burden on those declaring infringement to show that actual harm has been done, but that the First Amendment requires this. In fact, she finds it troubling that rather than putting the burden on the accuser to show harm, it’s often flipped around, and the burden is placed on the defendant to prove a lack of harm — which creates the chilling effects so many people warn about. It is these “chilling effects” that seem to go entirely against the First Amendment.
This article argues that copyright law, at least as it is applied in many cases, is unconstitutional. When there is no harm to the copyright holder’s incentives, copyright law burdens speech without serving any countervailing governmental interest. Thus, the First Amendment requires proof of harm in copyright infringement cases. Consistent with the government interest in encouraging innovation, the harm requirement would allow a finding of infringement only where the copyright holder can show that the defendant’s use is likely to cause real harm to the copyright holder’s incentives to create or distribute copyrighted works. As such, the harm requirement would allow restrictions on speech only when necessary to keep the “engine of free expression” running. Although the harm requirement is no panacea for all speech issues in copyright law, it would help courts to identify and eliminate cases involving false conflicts between the First Amendment and copyright — that is, cases in which there is arguably a speech interest in allowing the defendant’s use and no speech interest in prohibiting it.
It’s definitely a worthwhile read. Combined with some other recent scholarship, it seems likely that these issues are likely to get tested in court in the relatively near future. It would be great to see the courts recognize that copyright law has expanded so far as to violate the First Amendment in more and more situations.