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.