Copy this essay: how fair use doctrine harms free speech and how copying serves it.

• Author: Tushnet, Rebecca

CONTENTS INTRODUCTION I. OVERVIEW: THE FIRST AMENDMENT, COPYRIGHT, AND THE CONFLICT BETWEEN THEM A. What Free Speech Is For B. Copyright and Fair Use C. The First Amendment Value of Copying II. LIMITING THE FIRST AMENDMENT BY INVOKING FAIR USE A. How the First Amendment Value of Dissent Maps onto Transformative Fair Use B. How the Identification of Transformative Use with the First Amendment Obscures Other Free Speech Values 1. Copyright's Other Speech-Protective Limits 2. The Redefinition of Fair Use To Suppress Unauthorized Copying C. Is It the First Amendment's Fault? III. THE VALUE OF PURE COPYING A. Copying's Value to the Audience B. Copying's Value to Speakers 1. Self-Expression 2. Persuasion 3. Affirmation C. Copyright's Real-World Suppressive Effects IV. CODA: SOME SPECULATION ABOUT COPYRIGHT'S EFFECTS ON THE FIRST AMENDMENT CONCLUSION INTRODUCTION

What is copying good for? Why would someone of good faith want to copy? Debates over massive file sharing of music and movies have helped to make "copier" a synonym for "pirate." At the same time, many people, particularly in the academy, have expressed concern about the use of copyright to suppress critical and creative--"transformative," in copyright's terms--uses of copyrighted works, such as a retelling of Gone with the Wind from the perspective of an invented mulatto character. Defenders of transformative uses have invoked the First Amendment to bolster claims that such uses should not be subject to the copyright owner's permission. But this focus on transformation is critically incomplete, leaving unchallenged much of copyright's scope, despite the large number of nontransformative copying activities that are also instances of free speech. The current debate leaves the way open for expansions of copyright that, while not targeted at dissenting viewpoints, nonetheless may have a profoundly negative effect on freedom of speech. In other words, transformation has limited our thinking about the free speech interests implicated by copying. As fair use has grown in doctrinal importance as a means to harmonize copyright with the First Amendment, it has also, paradoxically, begun to shrink, excluding activities such as copying for research or educational purposes. Courts increasingly find that these traditional fair uses, which do not directly involve critical commentary, are unfair and require the copyright owner's permission. Using fair use and free speech as interchangeable concepts thus has a profound and negative narrowing effect on the scope of fair use and in turn threatens First Amendment freedoms, because noncritical uses of copyrighted works have substantial value to society and to freedom of speech.

The purpose of this Essay is not to propose a solution to the conflict between protecting copyright owners' rights and allowing freedom of speech. Indeed, I do not believe that such a solution is possible, because copying may sometimes be an instance of free speech even when it is also copyright infringement. Tradeoffs are inevitable, and although there are better and worse ways of balancing the interests at stake, my main aim in this Essay is to explain what copying is good for rather than to define the ideal scope of the rights granted by copyright.

1. OVERVIEW: THE FIRST AMENDMENT, COPYRIGHT, AND THE CONFLICT BETWEEN THEM

   1. What Free Speech Is For

      I wish to make what I hope is a rather modest claim: The current version of copyright, in which free speech problems are solved by keeping copyright owners from controlling certain transformative uses but in which more ordinary unauthorized copying is prohibited, is incompatible with the First Amendment. This is true whether one understands the First Amendment as protecting political speech, promoting democracy or self-government, furthering the search for truth, or enhancing autonomy and enabling self-expression.

      These descriptions are necessarily incomplete. Most important, my discussion does not address the First Amendment as a purely negative right, protecting speakers from government action based on their speech. Yet if the First Amendment bars only government action, then copyright law itself ought to be unconstitutional as a government restriction on some speakers in order to improve the relative position of others. (1)

      Rather than defend a particular view of the First Amendment, I hope to offer examples in which copyright law conflicts with free speech as it is understood by a variety of theories. Most obviously, I defend copying as a method of self-expression and self-definition consistent with autonomy-based accounts of freedom of speech. My argument also often refers to copying in service of democratic self-governance, which is the purpose of free speech identified by many current theorists of copyright and the First Amendment, including Jack Balkin, Yochai Benkler, and Neil Netanel. (2) Briefly, democratic self-governance builds on Alexander Meiklejohn's classic defense of the First Amendment as guarantor of democracy. (3) His definition of democracy, however, meant that only political speech--speech about government and what it should or shouldn't be doing--was protected from suppression. (4) His theory famously had trouble explaining why art and literature should be protected, except as poor stepchildren of political speech. Meiklejohn was also more concerned with speech than with speakers; as long as everything worth saying got said, it didn't matter whether everyone had a chance to speak. (5) In the Meiklejohnian tradition, the autonomy component of free speech is less important than its instrumental component--individual speech deserves protection only to further the goal of enriching public debate. (6)

      Theorists after Meiklejohn have expanded the concept of free speech's role in preserving democracy in two major ways. First, participation in public discussion is important, both to the individual and to the society that values each individual. (7) Second, democracy requires more than democratically elected rulers; it requires democratic culture. Popular culture is worth the First Amendment's protection not only, and not mostly, because it indirectly affects political attitudes but because it constitutes a major part of modern citizens' environment, shaping how we think and act. (8) Our lives are lived with the constant intrusion of multiple media productions, and many of our interactions with other people involve what we've been watching, listening to, or even reading. Encounters with explicitly political content are much more infrequent and much less central to most of our lives, and when moments of political choice do come, our responses are shaped by the culture around us. As a result, freedom to participate in shaping culture is an overriding concern of the democratic self-governance view. That freedom is both affirmative and negative. It requires access to some common culture, so that everyone will have the resources to participate in culture and the freedom to debate and disagree about meaning.

      While I find this conception of free speech attractive, its supporters have generally focused on transformation and criticism of copyrighted works as key elements of a democratic speech culture, rather than on simple copying. My discussion of copying as free speech is intended to complement theirs; I also hope that those who find other purposes in the First Amendment will find their preferred speech values implicated by the copying I discuss.

   2. Copyright and Fair Use

      Copyright has always posed a potential conflict with the First Amendment: A successful copyright infringement action gives the plaintiff the right to stop the defendant from printing, performing, or otherwise disseminating certain works. Infringing works can be seized and destroyed--book burning mandated by law. For nearly two centuries, though, courts and scholars did not think of copyright as posing any problems for free speech, in part because the First Amendment lacked its current scope and in part because copyright law rarely affected ordinary uses of copyrighted works. Consumers bought books and records, went to the movies, and listened to the radio, activities that gave them fewer opportunities to copy or modify copyrighted works than today's technologies allow, and any small-scale private copying was difficult for copyright owners to detect or address.

      In the 1970s, just as technology was beginning to make copying easy for ordinary people, scholars offered a convincing way to reconcile the two expanding bodies of law: (9) The First Amendment prevents government suppression of speech, while copyright law provides an economic incentive to create and distribute the speech in the first place. Copyright is undoubtedly an engine of free expression, (10) as it supports both large corporations and individual artists so that they can afford to be in the business of speaking. Unfortunately, however, there is not much evidence about the ideal scope of copyright or its ideal term. (11) Economic theory tells us that property rights in creative works will lead people to produce more creative works, at least up to the point where preexisting claims start to choke off latecomers' ability to create anything new, but no one knows the best place to draw the line. (12) Moreover, there are numerous sources of creative works that are produced without the incentive of copyright (though they might not be published and distributed as effectively without copyright). Some academics write to spread their ideas or to get tenure; some artists make art because they cannot do otherwise or because they seek public accolades; some software programmers work on open source software because they like the challenge or believe in the ideal of open source or want peer recognition. (13) As a result of the many intangibles and unknowns surrounding authorship, there is ample opportunity for debate about how to shape copyright law to best further the...