Copyright Law and Free Speech After Eldred v. Ashcroft
Article by Michael D. Birnhack
From Volume 76, Number 6 (September, 2003)
Eldred v. Ashcroft, as decided by the Supreme Court in January 2003, added another chapter regarding the relationship between copyright law and freedom of speech to the judicial “chain novel” that has been in the writing for the past three decades. The Court affirmed the constitutionality of the Sonny Bono Copyright Term Extension Act of 1998 (“CTEA”), which extended the copyright term by twenty years, both for existing works and for new works. As in previous chapters, the Court reached the conclusion that there is no conflict between the two legal fields. It repeated the judicial sound bite that “the Framers intended copyright itself to be the engine of free expression.” Eldred nicely fits the conflict discourse, which is mostly one of denial. But Eldred also included novel and interesting elements that offer a new direction to the conflict discourse, or at least a potential for redirection.
Eldred raises many intriguing copyright law and constitutional law questions. Here, however, I wish to focus on the possible ramifications the case might have on the conflict discourse with respect to its constitutional level. Surprisingly, Eldred is the first facial constitutional challenge to copyright law in 213 years. As copyright law continues to expand into new territories and in unpredictable ways, and as new bills are introduced at a staggering rate to further the scope of the rights of copyright owners, it is crucial that we study the contours of copyright law. This need is especially acute in light of the Court’s comment that “[w]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.”
In this Article, I wish to challenge the constitutional dimension of the judicial rejection of the conflict argument, which concerns the conflict between copyright law and the First Amendment. I will structure the critique along the lines of an important distinction. When we pause and ask what it is that the courts have been denying in rejecting the conflict argument, we see, after close study of over thirty cases that addressed the conflict argument, that, surprisingly, courts reject different things at different points. This leads us to identify two kinds of conflict: one is internal to copyright law, and the other is external to it. These two conflicts derive, respectively, from an internal view of the relationship of copyright law and free speech, and also from an external view.
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