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Copyright's Paradox$
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Neil Weinstock Netanel

Print publication date: 2008

Print ISBN-13: 9780195137620

Published to Oxford Scholarship Online: May 2008

DOI: 10.1093/acprof:oso/9780195137620.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2020. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 14 August 2020

 What Is Freedom of Speech?

 What Is Freedom of Speech?

(And How Does It Bear on Copyright)?

(p.30) Chapter Three What Is Freedom of Speech?
Copyright's Paradox

Neil Weinstock Netanel (Contributor Webpage)

Oxford University Press

When does someone's inability to copy, distribute, or build upon a copyrighted work rise to the level of a burden on free speech? When, in contrast, should we readily countenance the restraints that copyright imposes? To answer, this chapter begins with more fundamental questions: What counts as “speech” for purpose of “freedom of speech”? And what free speech principles apply to copyright? This chapter demonstrates that copyright law is an integral part of media and communications policy. It also argues that the important First Amendment value of “expressive diversity” requires a dispersal of communicative power and ample opportunity for speech that directly challenges mainstream culture and popular works. Creative appropriation, the ability to convey one's message and artistic vision by incorporating and building upon mass media sounds and images, thus lies at the heart, not the margins, of freedom of speech. But peer‐to‐peer file sharing is not “speech.”

Keywords:   copyright, free speech, mass media, Communications, expressive diversity, creative appropriation, First Amendment, peer‐to‐peer, file sharing

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