First Amendment Interests and Copyright Accomodations

Copyright law exists to encourage the creation of works of authorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it discourages, and resolves First Amendment concerns with protections internal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and corresponding drastic diminution of the public domain in the last three decades. This Article extends the U.S. Supreme Court’s reasoning in Eldred v. Ashcroft, which rejected the notion that courts should never subject copyright laws to First Amendment analysis, to read First Amendment accommodations into copyright laws where use of copyrighted materials implicates significant speech interests