Thierry Schlaudecker N12392219 Congress shall make no law... abridging the freedom of speech, or of the press... - U.S.

Constitution, First Amendment The relationship between copyright law and freedom of speech has fascinated mankind for decades. Altough many critics have raised concerns about possible tensions between copyright law and the First Amendment, courts have repeatedly reached the conclusion that there is no conflict between the two legal fields 1. The usual explanation is that copyright and the First Amendment are not in conflict because the Framers intended copyright itself to be the engine of free expression. In this dissertation I wish to challenge the aformentioned assumption by demonstrating that non-speech arguments are insufficient on their own to defend copyright against free speech criticisms.

The basic structure of copyright law - the property right accorded to authors in their original works, presumes that authors can exclude anyone from using their works. When a speaker wishes to use another authors expression as part of his own expression he has to obtain the owners permission, It is this very limitation, the essence of copyright law, that creates a puzzling contradiction between the two legal regimes. This contradiction was recognized by Lord Phillips M.R., in the case of Ashdown v. Telegraph Group Ltd Copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.2

Professor Melville Nimmer, author of a thesis on copyright law, also recognizes ''minor'' First
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Miller, Ernest (2005) Secondary Liability Under The Copyright Act: Article: First Amendment Scrutiny of Expanded Secondary Liability in Copyright. Smith, Graham (2010) Copyright and freedom of expression in the online world, in Journal of Intellectual Property Law & Practice. Oxford

Amendment limits on copyright but in general Nimmer finds that copyright itself provides the necessary limits to address any concerns about public access or free speech rights3. According to Nimmer, copyright actually encourages speech by granting limited monopolies to authors. ''Without these incentives, expressive output would presumably decline''. Thus, in her view, copyright's promotion of expression was generally consistent with the first amendment. Two subjects have been critical to her judgment: the idea/expression dichotomy and fair use.

The idea/expression dichotomy, now embodied in 102(b) of the Copyright Act 4, holds that only expression can be copyrighted, and not the idea, process, or other more general principle that underlies the particular expression. A common example is that West Side Story does not infringe the copyright of Shakespeare's Romeo and Juliet, because the two works are different expressions of the underlying idea of star-crossed lovers trapped by feuding families5.

However, the idea-expression dichotomy presents particularly difficult conceptual problems in music. As argued by music theorist and lawyer Hank Reynolds the notion remains surrounded by question marks: ''Do ideas exist in music, or is music pure expression thus rendering the dichotomy a nullity? If musical ideas do exist, what is their nature and can they be separated

Tushnet, Rebecca (2007) Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulations. Boston College Law School Student Publications.

Samuels, Edward (1989) The Idea-Expression Dichotomy In Copyright Law. Tennesse Law Review. Winter See 1

from expression?''6. According to Reynolds, the court has yet to grapple seriously with the application of this doctrine to music. The court has generated these doctrines in cases involving literature and plastic arts but these genres differs from music as they accept the terminology of the dichotomy if not the premise. The dividing line is difficult to draw in all arts, perhaps particularly so in the most abstract art-music. Few composers, if any, can confidently discern that line and the growing practice of consulting plagiarism experts prior to publication of popular and, especially, commercial music may reflect this issue.

The 1976 Copyright Act codified previous judicial doctrine into a statutory exception for fair use of copyrighted materials as a defense to a finding of infringement. The statute suggests four factors for deciding fair use claims: the nature of the copyrighted work; the purpose and character of the use, including whether it is commercial or noncommercial; the amount and substantiality of the use in relation to the copyrighted work as a whole; and the effect of the use on the market for the copyrighted work. Though the law allows courts to consider other factors, in practice they usually rely on the enumerated four. Fair use preserves ground for some use of and comment on copyrighted works, and courts and scholars generally agree that it therefore protects First Amendment interests.

Reynolds, Hank (1991) Music Analysis for Expert Testimony in Copyright Infringement Litigation.

One significant problem with fair use is similar to the problem with the idea/expression dichotomy: It is too vague to provide enough guidance7. Even those who believe that fair use serves First Amendment purposes recognize its infinite elasticity. There are four named factors, but the statute suggests that the list is not exclusive, and there is little guidance for how to weigh one against another. Indeed, after decades of litigation, it is still difficult to tell when and whether one can sample copyrighted songs or lyrics. Because the outcome of any particular case is uncertain, a potential infringer/fair user has to be willing to bear the substantial costs of litigation for a chance to escape liability. This seems quite likely to prompt self-censorship, as authors forego their first amendment freedoms for fear of being prosecuted.

As demonstrated in this essay, copyright poses a serious First Amendment problem. It restricts the freedom of speech and its contours are too ill-defined to be applied efficiently, especially to music. Neither principle (fair use and dichotomy of ideas) adequately addresses the free speech concerns. Its saving grace is that it is better for free speech than its absence would be; it is justified as a way for government to promote creativity. This said, copyrights wide-ranging effects on creative works require careful balancing so that the needs of future

Tushnet, Rebecca (2007) Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulations. Boston College Law School Student Publications.

creators are not lost in the name of protecting the property rights of those who have already created content. The challenge of reconciling modern constitutional doctrine with modern free speech doctrine may be the most serious constitutional difficulty of our time 8. As Benjamin Cardozo, a well-known American lawyer and associate Supreme Court Justice summarizes best, the reconciliation of the irreconcilable... the synthesis of opposites, these are the great problems of law.

Sources
Birnhack, Michael (2003) Acknowledging the Conflict between Copyright Law and Freedom of Expression under the Human Rights Act. Available at www-bcf.usc.edu/~usclrev/pdf/076601.pdf . Last accessed April 2, 2011. Garfield, Alan E. (2007) The Case For First Amendment Limits on Copyright Laws. Hofstra Law Review Vol. 35, Wieden Miller, Ernest (2005) Secondary Liability Under The Copyright Act: Article: First Amendment Scrutiny of Expanded Secondary Liability in Copyright Reynolds, Hank (1991) Music Analysis for Expert Testimony in Copyright Infringement Litigation, available at http://www.musicanalyst.com/dissertation.htm. Last accessed on April 5, 2011 Smith, Graham (2010) Copyright and freedom of expression in the online world, in Journal of Intellectual Property Law & Practice. Oxford Tushnet, Rebecca (2007) Copyright As A Model For Free Speech Law: What Copyright Has In Common With Anti-Pornography Laws, Campaign Finance Reform, And Telecommunications Regulations. Boston College Law School Student Publications. Yen, Alfred C. (1989) A first Amendment Perspective on the Idea/Expression Dichotomy and Copyright in a Work's Total Concept and Feel. Emory Law Journal

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