The Conflict between the First Amendment and Copyright Law and Its Impact on the Internet
![handle is hein.journals/caelj16 and id is 7 raw text is: THE CONFLICT BETWEEN THE FIRST
AMENDMENT AND COPYRIGHT LAW AND ITS
IMPACT ON THE INTERNET
STEPHEN FRASER*
1. INTRODUCTION
Since the U.S. Supreme Court's decision in Harper & Row,
Publishers, Inc. v. Nation Enterprises,1 few courts have upheld the ar-
gument that copyright law might be limited by the First Amend-
ment to the U.S. Constitution.2 That Amendment states,
Congress shall make no law ... abridging the freedom of speech,
or of the press.. .. Taken on their face, the copyright laws of the
United States4 place limits on the freedom to use certain speech by
granting authors a list of exclusive rights in their copyrighted
materials.5 However, according to the Supreme Court in Harper &
Row, the Framers intended copyright itself to be the engine of free
expression. By establishing a marketable right to use one's expres-
sion, copyright supplies the economic incentive to create and dis-
* © Stephen Fraser 1997. LL.M. in Trade Regulation, concentration in Intellectual
Property, N.Y.U. School of Law, 1997;J.D. and Certificate in International Trade Law, Pace
University School of Law, 1994; B.A. in English, concentration in Film and Communica-
tions, McGill University, 1990. The author is an associate in the Intellectual Property
Group of Womble Carlyle Sandridge & Rice, PLLC in Raleigh, North Carolina.
1 471 U.S. 539 (1985). In Harper &Row, the defendants had attempted to argue what,
to the Court, amounted to a public figure exception, id. at 557, to excuse their copying
portions of President Ford's biography in their magazine, prior to the biography's publica-
tion. Id. at 542-44, 556. In fact, Paul Goldstein, a renowned copyright scholar and author
of one of the first and most influential articles on the issue of copyright and the First
Amendment, Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REv. 983
(1970) (federal copyright law, by and large, accommodates the First Amendment), states
in his treatise that in light of Harper & Row, [i]n retrospect it is clear that the perceived
conflict between copyright and the first amendment was a tempest in a very small teapot.
PAUL GOLDSTEIN, COPYRIGHT: PRINCIPLE, LAW, AND PRACTICE § 10.3 (2d ed. 1991). Profes-
sor Goldstein probably gave up on the point too soon. Not all conflicts between the First
Amendment and copyright could have been resolved or foreseen in Harper & Row.
2 See infra notes 223-26, 244-48 and accompanying text.
8 U.S. CONST. amend. I. The full text of the First Amendment, which includes the
Religion Clauses and the right of assembly, is as follows: Congress shall make no law re-
specting an establishment of religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances. Id.
4 Copyright Act of March 4, 1909, 35 Stat. 1075 (codified as amended at 17 U.S.C.
§§ 1-216 (1976)); Copyright Act of 1976, codified as amended at 17 U.S.C. §§ 101-1010
(1996). The 1909 Act applies to works created before January 1, 1978, the effective date of
the Copyright Act of 1976. See 17 U.S.C. §§ 301-505. Most references in this article will be
to the 1976 Act.
5 17 U.S.C. §§ 106, 106A.](ViewImageLocal?handle=hein.journals/caelj16&div=6&collection=&method=preview&ext=.png&size=3)
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The Conflict between the First Amendment and Copyright Law and Its Impact on the Internet
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