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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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 Copyright and the First Amendment

 Copyright and the First Amendment

(p.169) Chapter Eight Copyright and the First Amendment
Copyright's Paradox

Neil Weinstock Netanel (Contributor Webpage)

Oxford University Press

Copyright law's potential for abridging speech has long been recognized in United States case law, legislation, and commentary. Because of copyright, speakers are often unable effectively to convey their message and audiences are deprived of valuable expression. But courts have almost never entertained First Amendment defenses to copyright infringement claims. They have held that copyright's internet “free speech safeguards,” including fair use and the idea/expression dichotomy, provide adequate protection for free speech.

This chapter argues that courts should apply the First Amendment to cabin copyright holder prerogatives where necessary to protect speech. It then sharply criticizes the Supreme Court's rejection of a First Amendment challenge to the Copyright Term Extension Act in Eldred v. Ashcroft. Yet as the chapter notes, Eldred nevertheless suggests a couple of ways in which courts could reinvigorate copyright's internal free speech safeguards in light of First Amendment strictures.

Keywords:   copyright, First Amendment, free speech, fair use, idea/expression dichotomy, Eldred v. Ashcroft, Supreme Court

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