Copyright and Freedom of Expression: Saving Free Speech from Advancing Legislation

The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to acknowledge that in the common law country of the United States, natural rights such as free speech should take rank over congressionally granted rights. Scholars have been trying to call attention to this conflict since the Copyright Act became effective, but it is important to focus on the very basis of the conflict: the difference in theories of intellectual property law between common law and civil countries. This article approaches this subject with a comprehensive, yet concise, method. It walks the reader through several stages of the development of current copyright law, taking a very close look at fair use doctrine, the problems of the Digital Millennium Copyright Act, and how other advancements in Congressional legislation are historically framed by our Constitution. Next, it examines the historical purposes of these two conflicting Constitutional clauses. And ultimately, the article provides recommendations for courts, developed from viewing these problems through a lens of natural law theory