[Infowarrior] - Copyright Harm and The First Amendment

[Richard Forno]

COPYRIGHT HARM AND THE FIRST AMENDMENT

http://works.bepress.com/christina_bohannan/1/

Paper:
http://works.bepress.com/cgi/viewcontent.cgi?article=1000&context=christina_bohannan

Christina Bohannan, University of Iowa College of Law

Abstract

Copyright law is a glaring and unjustified exception to the general  
rule that the government may not prohibit speech without a showing  
that the speech causes harm. While the First Amendment sometimes  
protects even harmful speech, it virtually never allows the  
prohibition of harmless speech. Yet, while other speech-burdening  
laws, such as defamation and right of publicity laws, require  
demonstrable evidence that the defendant’s speech causes actual harm,  
copyright law does not make harm a requirement of infringement.  
Although copyright law considers harm to the market for the  
copyrighted work as a factor in fair use analysis, harm is not always  
required and is so poorly defined that the concept has become  
circular. Moreover, the defendant ordinarily bears the burden of proof  
to show the absence of harm. As a result, courts often find liability  
for infringement (and therefore burden speech) where harm is purely  
speculative.

Potential explanations for copyright’s anomalous treatment are  
unpersuasive. Copying involves speech as well as conduct, and the fact  
that copyrights are in some sense property does not come close to  
justifying its aberrant treatment. Moreover, copyright’s role in  
encouraging creative expression does not obviate First Amendment  
concerns. Rather, it provides a way to reconcile copyright law and  
free speech. Drawing substantially from First Amendment cases holding  
that speech restrictions must be justified by a governmental interest,  
this article argues that the First Amendment requires real proof of  
harm to the copyright holder’s incentives in order to impose liability  
for copyright infringement. It also explores the types of harm that  
might arise in copyright infringement cases and considers whether the  
First Amendment permits recognition of these types of harm. The  
article concludes that although demonstrable market harm is cognizable  
under First Amendment principles, recognition of harm to the  
reputation of copyrighted works, the author’s right not to speak or  
associate, or the copyright holder’s privacy interests is generally  
not compatible with the values of free speech.
Suggested Citation

Christina Bohannan. "COPYRIGHT HARM AND THE FIRST AMENDMENT" ExpressO  
(2009).
Available at: http://works.bepress.com/christina_bohannan/1

http://works.bepress.com/christina_bohannan/1/