12 Chi.-Kent J. Intell. Prop. 1 (2013)

handle is hein.journals/jointpro12 and id is 1 raw text is: 12 CHI.-KENT J. INTELL. PROP. 1

COPYRIGHT AND FREEDOM OF EXPRESSION:
SAVING FREE SPEECH FROM ADVANCING LEGISLATION
Amanda Beshears Cook*
The Supreme Court has expressly recognized the possibility of a First Amendment
defense to copyright infringement claims, but it has never actually found such a defense to apply
to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation
that restricts speech under the banner of the copyright clause. The problem is that the natural
right offree speech is being depleted by the legislatively granted right of intellectual property,
putting both individual liberty and the public good at risk. Congress and the courts both must
begin to acknowledge that in the common law country of the United States, natural rights such
as free speech should take rank over congressionally granted rights. Scholars have been trying
to call attention to this conflict since the Copyright Act became effective, but it is important to
focus on the very basis of the conflict. the difference in theories of intellectual property law
between common law and civil countries.
This article approaches this subject with a comprehensive, yet concise, method. It walks
the reader through several stages of the development of current copyright law, taking a very
close look at fair use doctrine, the problems of the Digital Millennium Copyright Act, and how
other advancements in Congressional legislation are historically framed by our Constitution.
Next, it examines the historical purposes of these two conflicting Constitutional clauses. And
ultimately, the article provides recommendations for courts, developed from viewing these
problems through a lens of natural law theory.
Amanda Beshears Cook is a native of Montgomery, Alabama where she practices Real and Intellectual Property
Law. She is a graduate of Faulkner University Thomas Goode Jones School of Law where she was an Eagle Scholar.

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