Locating copyright within the First Amendment skein.

• Author: Netanel, Neil Weinstock

INTRODUCTION

The Wind Done Gone, a new novel by Alice Randall, revisits the setting and characters of Margaret Mitchell's classic Civil War saga, Gone With the Wind, from the viewpoint of a slave. Randall says she wrote her parodic sequel, a work laced with miscegenation and slaves' calculated manipulation of their masters, in order to "explode" the racist stereotypes and romantic portrait of antebellum plantation life perpetuated by Mitchell's mythic tale. (1) Mitchell's heirs don't gladly suffer such adulterations. (2) They brought a copyright infringement action against Randall's publisher, and a Georgia district court preliminarily enjoined the novel's publication. (3) But the Eleventh Circuit reversed, labeling the district court's order "an unlawful prior restraint in violation of the First Amendment." (4) As of this writing, the lawsuit remains pending.

The Eleventh Circuit's ruling is extraordinary. It marks the first time an appellate court has applied the First Amendment's Free Speech Clause to constrain the enforcement of a copyright. (5) To be certain, copyright's potential for burdening speech has long been recognized in U.S. case law, legislation, and commentary. (6) Nevertheless, courts have almost never imposed First Amendment limitations on copyright, and most have summarily rejected copyright infringement free speech defenses. (7) In almost every instance, courts have assumed that First Amendment values are fully and adequately protected by limitations on copyright owner rights within copyright doctrine itself. (8) They have posited accordingly that "copyrights are categorically immune from challenges under the First Amendment." (9)

I argue in this Article that, with the recent exception of the Eleventh Circuit, the courts have consistently gotten it wrong. In fact, copyright's judicial exoneration seems to rest largely on historical accident. In immunizing copyright from First Amendment scrutiny, courts have regularly cited early commentary, in particular a 1970 law review article authored by Melville Nimmer. (10) Like other of his contemporaries, Nimmer concluded that the conflict between copyright and free speech is generally ameliorated by copyright's role in incentivizing new expression and by copyright's "internal safety valves," copyright law doctrines that limit the scope and duration of copyright holder rights. (11)

Nimmer's conclusions might have been plausible in 1970. But in steadfastly following that early commentary, courts have largely ignored subsequent developments in both copyright law and First Amendment doctrine. As copyright law has evolved over recent decades, copyright owner prerogatives have steadily become more bloated. This expansion raises serious questions about copyright's continued fit with its incentive-for-original-expression rationale. It has also imposed an increasingly onerous burden on speech.

In parallel, even if free speech law might have presented little ground for subjecting copyright to First Amendment scrutiny in the past, the evolving precepts and analytic framework of First Amendment doctrine now fully support, if not demand, such scrutiny. Among other developments, the First Amendment has now been held to circumscribe government enforcement of numerous and sundry private rights, including other intellectual property rights and rights that, like copyright, have internal limits that already provide a measure of protection for free speech values. (12) The notion that copyright stands wholly outside First Amendment scrutiny is thus a striking anomaly.

This Article places copyright within the purview of current First Amendment doctrine. I argue that First Amendment challenges to copyright law warrant a far more rigorous analysis, and that copyright's speech-burdening effects should be subject to considerably more exacting First Amendment scrutiny than courts have accorded thus far. Although it stands at the heart of the Eleventh Circuit's ruling, I do not argue for the applicability of the doctrine of prior restraint to preliminary injunctions in copyright infringement cases; that issue has been adroitly joined elsewhere. (13) Rather, I contend that, in appropriate circumstances, the First Amendment should come into play in challenges to the constitutionality of recent statutory expansions of copyright holder rights and as a defense in final adjudications of copyright infringement actions.

With these points in mind, Part I of this Article briefly limns and places in doctrinal context Melville Nimmer's argument that First Amendment defenses to copyright infringement should almost never be recognized. Part I also traces the initial reformulation and subsequent reiteration of the Nimmer exoneration in the courts.

I then enumerate the fundamental changes in copyright and First Amendment doctrine that have transpired since 1970, changes that render much of Nimmer's argument out of date and courts' continued reliance upon that argument misconceived. Part II describes how copyright has come increasingly to burden speech. Since 1970 Congress has proven highly receptive to copyright industry lobbying, doling out an ever more expansive bundle of copyright holder rights. In parallel, courts have acquiesced in eviscerating traditional limitations to those rights. Part II also examines copyright's celebrated role as an "engine of free expression" and challenges the notion that copyright's purported free speech benefits justify its immunization from First Amendment scrutiny.

Part III describes the category approach that has come to dominate First Amendment doctrine. Under that approach, the first question we need to ask is whether copyright-imposed speech burdens meet the threshold for being subject to heightened judicial scrutiny under the First Amendment. In Part IV I argue on the basis of current First Amendment doctrine that those speech burdens easily meet the threshold test and thus that copyright should be subject to First Amendment scrutiny.

Continuing within the category approach, Part V then considers the level of scrutiny that should be applied to copyright-imposed speech burdens. I argue that copyright is best categorized as "content-neutral," not "content-based" regulation as some commentators have contended. Content-neutral regulation is often said to be subject to "intermediate scrutiny," as distinct from the "strict scrutiny" reserved for much content-based regulation and the minimal, "rational basis" review accorded regulation that does not implicate the First Amendment.

But to apply an "intermediate" level of review does not end our inquiry because "intermediate" review does not consist of a single, uniform standard. Rather, as courts have applied it, it encompasses a variety of tests for determining whether content-neutral regulation passes First Amendment muster. These range from highly deferential to just less demanding than strict scrutiny.

Copyright law, I argue in Part VI, should be subject to the exacting scrutiny that the Supreme Court enunciated in Turner Broadcasting Sys., Inc. v. FCC. (14) Courts have applied Turner to rigorously scrutinize content-neutral regulation that distributes speech entitlements among prospective speakers, including regulation that, like copyright, purports broadly to further First Amendment goals. As some courts have suggested, rigorous, albeit "intermediate," scrutiny is warranted in such cases in part because speech entitlement allocations give rise to a suspicion of successful rent-seeking by the highly organized interests to whom the entitlements are granted. Significantly, as Part VI further delineates, the Copyright Act and its recent amendments are paradigmatic examples of Congressional rent distribution to preferred speakers, which in the process burdens the speech of other prospective speakers and the public at large.

Part VII illustrates how Turner scrutiny might apply to speech burdens imposed by copyright law. I focus first on facial challenges to the Sonny Bono Copyright Term Extension Act and the Digital Millennium Copyright Act's anti-circumvention provisions, arguing that each is vulnerable to First Amendment challenge. I then turn to as-applied challenges. Finally, I argue for First Amendment intervention to buttress copyright law's fair use privilege.

1. THE NIMMER EXONERATION AND ITS JUDICIAL PROGENY

   Copyright's speech encumbrance cuts a wide swath, chilling core political speech such as news reporting (15) and political commentary, (16) as well as church dissent, (17) historical scholarship, (18) cultural critique, (19) artistic expression, (20) and quotidian entertainment. (21) So why should copyrights be deemed "categorically immune from challenges under the First Amendment"? (22) Why have courts subjected private causes of action under the laws of trademark, right of publicity, defamation, right of privacy, interference with business relations, intentional infliction of emotional distress, wiretapping, and, in some instances, property to First Amendment scrutiny, but not copyright? Why have not courts at least tested whether copyright's traditional safety valves are sufficient to pass First Amendment muster? Copyright's anomalous treatment undoubtedly arises from a complex interplay of factors. I focus here on a principal cause that highlights the antiquated nature of that treatment: courts' continued invocation of early commentary and precedent in the face of fundamental changes in copyright and surrounding First Amendment doctrine.

   In a seminal article published in 1970, eminent copyright and First Amendment scholar Melville Nimmer explored the apparent conflict between copyright and free speech. (23) Nimmer concluded that, except with regard to certain news photographs, copyright's idea/expression dichotomy and limited term of protection provide adequate protection for free speech values. (24) He reasoned that the First Amendment primarily protects the expression and...