![]() ![]() Garfield, The First Amendment As a Check on Copyright Rights, 23 Hastings Communication and Entertainment Law Journal 587 (2001)  Jed Rubenfeld, Freedom of Imagination: Copyright’s Constitutionality, 112 Yale Law Journal 1 (2002)  Wendy Seltzer, Free Speech Unmoored in Copyright Safe Harbors, Harvard Journal of Law and Technology (2010). ![]() By and large, the consensus is that the restriction exists, and something needs to be done about it. What’s missing from these arguments, however, is any discussion about the free speech rights of copyright owners. 3 One exception is David McGowan, Some Realism About the Free Speech Critique of Copyright, 74 Fordham Law Review 101 (2005). Today I want to take a closer look at this discussion, one I broached before in Artistic Expression, the First Amendment, and Copyright. “Once it is decided … that the First Amendment operates in the copyright arena, it should be realized that it is a two-way street, for the copyright owner also has First Amendment rights.” 4 William Patry, The Fair Use Privilege in Copyright Law, 469-70 (1985). So says William Patry, one of the leading experts in the US on copyright law. He recognizes what many free speech critics of copyright don’t: free speech interests lay on both sides of the copyright owner-copyright user divide. And rather than standing in contradiction to each other, the first amendment and copyright law work in tandem to protect the free speech interests of both sides. While this point is lost to free speech critics, US courts recognize it — first amendment defenses to copyright infringement actions are consistently rejected in lawsuits. “It should not be forgotten that the Framers intended copyright itself to be the engine of free expression,” wrote the Supreme Court in Harper & Row v. Copyright and the first amendment co-exist to allow new ideas to be created and disseminated. Copyright provides an incentive to encourage the spread of new expression, while the first amendment removes roadblocks in the way of dissemination. ![]()
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