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Copyright and Free Speech

When copyright law was first enacted in 1790, the maximum term was 28 years. Now it can exceed 100 years. Authors were originally free to build upon, reference, comment upon, or parody previous works. Today, authors can be sued if they merely appropriate themes or storylines from earlier works, and composers may be liable if their work creates an "impression of similarity" with previous work. Speech-protective limitations on copyright, such as the rule that original expression is protected but ideas are not, the privilege of de minimis copying, and the privilege of "fair use", have all been weakened. These developments have produced an enormous literature debating whether the purposes of copyright have somehow been distorted. It has produced a smaller literature considering the tension between copyright and free speech. This seminar will consider both of these bodies of literature, and attempt to bring them to bear on one another. Readings will include some general introduction to both copyright and free speech, and some of the following: Neil Netanel, Copyright's Paradox (2008). Eldred v. Ashcroft, 537 U.S. 186 (2003). Golan v. Holder Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 Yale L. J. 1 (2002). Andrew Koppelman, Veil of Ignorance: Tunnel Constructivism in Free Speech Theory, 107 Nw. U. L. Rev. 647 (2013). Kembrew McLeod & Peter DiCola, Creative License: The Law and Culture of Digital Sampling (2011). Anupam Chander & Madhavi Sunder, Everyone's a Superhero: A Cultural Theory of Mary Sue Fan Fiction as Fair Use, 95 Cal. L. Rev. 597 (2007). Madhavi Sunder, IP3, 59 Stan. L. Rev. 257 (2006). Anupam Chander & Madhavi Sunder, The Romance of the Public Domain, 92 Cal. L. Rev. 1331 (2004). Lawrence Lessig, Free Culture: The Nature and Future of Creativity (2005). Jack M. Balkin, The Future of Free Expression in a Digital Age, 36 Pepperdine L. Rev. 707 (2009). Jack M. Balkin, Digital Speech and Democratic Culture: A Theory of Freedom of Expression for the Information Society, 79 N.Y.U. L. Rev. 1 (2004). And work by some of the following: Rebecca Tushnet Jennifer Rothman Pam Samuelson, Google book Randy Picker Matt Sag, copy-reliant technologies Wendy Gordon, Locke & IP, years ago Edward Lee, Kent


Catalog Number: PPTYTORT 662


Course History

Fall 2013
Title: Copyright and Free Speech
Faculty: Koppelman, Andrew M. (courses  |  homepage)
Section: 1     Credits: 3.0
Capacity: 25     Actual: 8