By , December 21, 2010.

As scholars, interest groups, and bloggers criticize copyright, many turn to the first amendment to add heft to their arguments. The nature and scope of copyright law is not just bad, they argue, it is unconstitutional.

The “free-speech critique of copyright” 1A phrase coined by law professor David McGowan in Some Realism About the Free Speech Critique of Copyright. seems appealing, at first glance. For starters, it sounds a lot better to say you’re defending the Constitution rather than complaining about having to pay for music and movies.

But this criticism of copyright law suffers in a number of respects. In Artistic Expression, the First Amendment, and Copyright, I showed how the free speech critique of copyright fails to take into consideration the free speech rights of creators. In this sense, the free speech critique isn’t about upholding the values of the first amendment where they’ve been previously ignored — it’s about playing favorites with first amendment values: the free speech rights of those who make creative or even consumptive uses of existing expressive works should be protected at the expense of the free speech rights of those who actually created the works in the first place.

When we discuss the relationship between the first amendment and copyright, it’s important to recognize that creators have free speech interests too. Earlier this month, I took a look at how copyright law helps protect the free speech rights of creators. Copyright is the “engine of free expression” that provides an incentive to invest in the creation and dissemination of ideas and expression. Piracy — the unauthorized distribution of near-exact copies of a work — creates a chilling effect on the speech of creators.

But copyright law does more than just promoting the creation and dissemination of new expression. It also helps to protect the free speech rights of creators after a work has been created.

David McGowan explores this point in Some Realism About the Free Speech Critique of Copyright.

Audiences understand works in light of a cluster of facts and circumstances we call context. Contexts change, so meanings can change. People may understand a work in different ways at different times. One way a meaning can change is for one person to take a work and place it in a new context of their own creation, trading on its meaning and thereby imbuing the work with their own perceptions.


The changeability of meaning is fundamental to the relationship between copyright and speech. Take whatever collective description of free-speech activity you prefer: the development of common culture, democratic civil society, or what have you. Call it “speech.” Because meanings can change, an author’s contribution to speech may end when a work is published, but it does not have to. If the law gives her the power, an author can keep on trying to manage the meaning of a work over time.

This point is not lost on the free speech critics of copyright. In fact, for some, it forms the basis for their argument.

For example, in Parchment, Pixels, and Personhood: User Rights and the IP (Identity Politics) of IP (Intellectual Property), John Tehranian classifies copyright infringement as something akin to a fashion statement. Just as some people choose to express themselves through the clothes they buy and how they wear them, some people choose to express themselves through the music they listen to and through remixing or mashing up existing works.

What’s unclear is why copyright law stands in the way of this expression, and what’s even less clear is how the first amendment requires copyright law to get out of the way more than it does now.

It doesn’t. The free speech criticism of copyright fails on this point because it neglects the creator’s free speech interests in managing the meaning of a work. As McGowan explains:

[W]hen one speaker wants to use another’s work, the relevant legal rules embody a choice between two speech interests. Because meanings can change, and because authors may affect that change, this choice is not a choice between an author who has had his say and one who wants to speak. It is between two people who would like to try to make people see a certain work a certain way.

So there is good news and bad news. The good news is that whichever of these rules, or any combination of them, the law adopts, a speech interest will be advanced. The bad news is that whichever rule it adopts, a speech interest will be harmed. Whether you consider it good news or bad, this fact means that no notion of speech, and no theory of the freedom of speech, provides a premise for preferring one rule over the other.

Now we can see what the Supreme Court means when it says “copyright law has built-in First Amendment accommodations.” 2Eldred v. Ashcroft, 537 US 186, 219 (2003). The copyright incentive spurs the creation and dissemination of new ideas and expression, while the distinction between ideas and expression (copyright protects only expression, not ideas) means users and downstream creators can use and build on these new ideas. Fair use allows others to use even the expression in existing works without permission in certain situations — situations such as criticism 317 USC § 107. and parody, 4Campbell v. Acuff-Rose, 510 US 569 (1994. where the use is valuable, but it is unlikely for a copyright owner to grant permission.

But any free speech critique of copyright that ignores or neglects the free speech rights of creators does a disservice to the values enshrined in the first amendment. Creators should not be asked to sacrifice their speech rights just because nonconstitutional arguments against copyright have faltered.


1 A phrase coined by law professor David McGowan in Some Realism About the Free Speech Critique of Copyright.
2 Eldred v. Ashcroft, 537 US 186, 219 (2003).
3 17 USC § 107.
4 Campbell v. Acuff-Rose, 510 US 569 (1994.


  1. Hmm. So in order to protect some people’s free speech rights, Queen Anne had to suspend everyone else’s right to copy or speak their words?

    No doubt this had nothing to do with suppressing sedition and granting her consequently beholden and obedient Stationers’ Company the monopolies they used to have and lobbied for resumption?

    Just who are you trying to convince with this sophistry? Yourself?

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  3. Only connection I’m able to understand between copyright and free speech is that copy prevention mechanisms reasoned by copyright violate free speech sometimes.

    I understand copyright as an intellectual property law. One that declares ownership rules on something that is merely a shape.

    You could clarify up your point and reverse out of legalese language.

  4. The best that I can say is Adam Smith disagrees with his Invisible hand.

    “It is not from the benevolence of the butcher, the brewer or the baker, that we expect our dinner, but from their regard to their own self interest. We address ourselves, not to their humanity but to their self-love, and never talk to them of our own necessities but of their advantages.”

    What you continue to say is that copyright acts as the engine of creativity:

    “Copyright is the “engine of free expression” that provides an incentive to invest in the creation and dissemination of ideas and expression. Piracy — the unauthorized distribution of near-exact copies of a work — creates a chilling effect on the speech of creators.”

    Yet, as I’ve shown in your articles again and again, is that this is not the case. Your so-called “chilling effect” on authors is not happening. Authors continue to make new works daily, weekly, and monthly. They have their works distributed over the internet, and still, you’ve yet to find one or two (as I challenged) that supposedly lost their house or car or their living because of piracy.

    The authors still have their messages. Just as when I give a book to a friend to entice them to a new writer to read or give a CD to a friend, that isn’t depriving them of sales.

    “Creators should not be asked to sacrifice their speech rights just because nonconstitutional arguments against copyright have faltered.”

    Again, and I will repeat:
    They haven’t lost their message. Even if the author is being hypocritical on her stance, the message of piracy being as harmful as you seem to think is losing its luster.

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  6. I’m not American, and I’m not a lawyer, so I’m hardly an expert on the US Constitution, but even I know that the Constitution explicitly provides for copyright laws, and that the First Amendment does not revoke that provision.

    As to the general principle of free speech and expression, I do not see how anyone could confuse expressing one’s own ideas with copying someone else’s. The two concepts are pretty much mutually exclusive! If you happen to agree with someone else’s views, and wish to endorse them, then you can always restate them in your own words, or simply give a reference. Like I could say ‘I agree with Terry Hart’s post’.

    • I regret I did not keep the document, but quite some time ago, while researching the history of US copyright law, I came across a discussion of the Bill of Rights, and in particular specific provisions presented by Thomas Jefferson. One of his proposals pertained to monopolies, and comprised a specific prohibition, except in the case of patents and copyrights associated with Article 1, Section 8, Clause 8. While this provision did not make its way into the Bill of Rights, it does suggest to me that even Mr. Jefferson recognized that what is now the free speech right embraced within the First Amendment and copyrights were not mutually exclusive.

      • Yes, given that the Constitution only empowered Congress to secure the author’s (natural) exclusive right to their writings, and Queen Anne’s Statute was the privilege of a monopoly Jefferson suggested to Madison that monopolies in literary works could be added to the Bill of Rights. One might suspect Jefferson realised as Madison that a monopoly granted could more easily be rescinded. That potentially puts Jefferson in a good light (if we can infer his motive), but it puts Madison in a bad light either way, as he evidently coveted copyright and realised it would stand longer if its sanction was assumed implicit in the progress clause (it is not) than if its granting was specified. Thus the Statute of Anne was copied and modified to be enacted by the US in 1790. And every copyright supporter since has repeated the lie that power to grant it was given by the progress clause – or ‘copyright clause’ as its supporters prefer to call it. Congress only has power to secure an individual’s exclusive right, not to grant any monopolies in literary works. This is the difference between protecting an individual’s privacy and granting them the privilege of a reproduction monopoly – which as we know is an instrument of injustice, since by annulling the right to copy in the majority, it leaves the right, by exclusion, in the hands of a few (copyright holders).

      • I should add that an individual’s privacy (including the exclusive right to their writings) cannot derogate from an individual’s liberty since they cannot be at liberty to communicate that which they do not know, nor at liberty to copy a work they do not possess (nor can without burglary).

        Conversely, copyright explicitly derogates the right to copy from the individual’s liberty, leaving them needing permission to sing songs sung to them, to tell stories told to them, or to write poems written to them.

        Copyright is the unethical privilege to be abolished. The Constitution is fine. Madison who legislated copyright as a fait accompli, on the insinuation it was solely the securing of exclusive right, rather than a derogation of liberty, is culpable for corruption, seduced by the commercial advantage of monopoly – as are all those who support its continuation, however ineffective and however many youngsters are imprisoned and families bankrupted.

  7. This may help:

    “I conceive there may be difficulty in finding general modifications of these, suited to the habits of all the States. But if such cannot be found, then it is better to establish trials by jury, the right of habeas corpus, freedom of the press and freedom of religion, in all cases, and to abolish standing armies in time of peace, and monopolies in all cases, than not to do it in any.

    • Jefferson also wrote in a letter to James Madison, Aug 28, 1789, about what should be in the new constitution, proposing the following language:

      “– Art. 9. Monopolies may be allowed to persons for their own productions in literature and their own inventions in the arts for a term not exceeding __ years but for no longer term and no other purpose.”

      Full letter
      In a Sep 6, 1789, letter to Madison, he recommends increasing the length of copyrights:

      “This principle that the earth belongs to the living and not to the dead is of very extensive application and consequences in every country, and most especially in France…Establish the principle also in the new law to be passed for protecting copy rights and new inventions, by securing the exclusive right for 19. instead of 14. years.”

      My point is not to show that Jefferson had a more nuanced view on intellectual property than some would suggest by merely cherry-picking quotes. It should also be noted that his role in the Framing was periphery at best, so it’s questionable to put any weight to his authority on the intent of the constitution.

      • Jefferson’s letters were just that…letters. Nevertheless, they do provide insight into his view of patents and copyrights in general. I mentioned this matter merely to note that those who cherry pick his letter many years later to Isaac McPherson do not present his views in proper context. I also mentioned the matter to note that even Jefferson did not view copyrights and free speech rights as incompatible and irreconcilable.

      • The author’s natural exclusive right should of course be secured for their natural lifespan.

        It’s easy to confuse the duration of a monopoly in their literary productions (the period in which the public’s right to copy them is annulled) as the duration of their exclusive right (the right they’re born with and have throughout their life).

        Copyright is not the exclusive right, but a means of securing it – one that Madison/Congress assumed the power to grant (though ‘power to secure’ does not require nor warrant abridging liberty, as copyright does). Copyright goes beyond securing the exclusive right, by providing a monopoly over published works (works no longer exclusive – one has no right to constrain someone included, or exclude others from them).

        Copyright is a poor means of providing security, especially as it is up to the privileged holder to prosecute infringers. This is of course, aside from copyright’s tragedy of derogating liberty – another right that an individual is born with and would have had throughout their life (but for copyright, patent, etc.).

        Like all state granted monopolies, copyright should be abolished. The individual’s exclusive right to their writings should be secured just as is their exclusive right to their material possessions, by the state.

  8. From:

    Writing to James Madison, Jefferson said he approved the Bill of Rights as far as it went, but would like to see the addition of an article specifying that “Monopolies may be allowed to person for their own productions in literature, and their own inventions in the arts, for a term not exceeding — years, but for no longer term and for no other purpose.”

    See also:

    But of course, this would undermine Madison’s insinuation that the Progress clause already gave Congress all the power it needed to grant monopolies. The last thing he could do was to admit that the Constitution only empowered the securing of the (pre-existing, natural) exclusive right, and that granting of monopolies would need explicit power – more easily rescinded if in the Bill of Rights. Moreover, the Constitution couldn’t explicitly grant monopolies without contradicting its raison d’etre – to preserve individual liberty.

  9. interesting discussion – … I can’t follow – I’ve never experienced any protection from copyright law – maybe this is why I find it difficult to follow the article along this idea. When I post my picture on my blog I actually never though of something that belonged to me and needs protection. I recall taking pictures of trees – it just would be bold to think I could claim a copyright for the pictures. If anyone could claim anything it is the tree, or the landscape, or maybe the farmer the tree belonged to.

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