15 Chi.-Kent J. Intell. Prop. 1 (2016)

handle is hein.journals/jointpro15 and id is 1 raw text is: 



                      HON. M. MARGARET MCKEOWN*

     Greetings from what I call the digital circuit  the Ninth Circuit spans
the west coast from San Diego, a center of the wireless world, to Silicon
Valley and San Francisco's Market Street, where Uber and Twitter thrive,
onward to the Portland tech corridor with Intel, and all the way through
Seattle's tech-rich environment, where Microsoft, Amazon, and many others
have their headquarters. Inland, our circuit covers Idaho, where Micron had
its roots, and the growing tech centers in Arizona and Nevada. Some say we
are the Hollywood circuit, and others say the left coast circuit, but I think
that the moniker of digital circuit, or tech circuit, is particularly
appropriate for this lecture.
     It is almost a clich6 to say that copyright and the First Amendment are
both in tension and in synergy with each other.1 While this observation is
broadly true, its specific implications are often muddled. I suggest that the
most discussed tension between copyright and the First Amendment-
sometimes dubbed crowding out'-is overblown. Instead, we should
focus on a more real and pressing tension. That tension is the growing
number of claims that invoke copyright protection to remedy a broad array
of personal harms-such as invasion of privacy-and in the process tromp
on the First Amendment. In simple terms, a trumped up copyright claim
cannot justify censorship in the guise of authorship.
     I will first sketch the background of the copyright/First Amendment
debate and then turn to Garcia v. Google,3 a case that highlights the

    * Judge, United States Court of Appeals for the Ninth Circuit. This article is adapted from
remarks delivered on September 25, 2015, at the Chicago-Kent Supreme Court IP Review. Judge
McKeown thanks her law clerk, Dan Walters (Michigan 2012), for his research assistance.
    1. See, e.g., Joseph P. Bauer, Copyright and the First Amendment: Comrades, Combatants, or
Uneasy Allies?, 67 WASH. & LEE L. REV. 831, 833 (2010); David S. Olson, First Amendment Interests
and Copyright Accommodations, 50 B.C. L. REV. 1393, 1395 (2009).
    2. See, e.g., David McGowan, Why the First Amendment Cannot Dictate Copyright Policy, 65 U.
PITT. L. REv. 281, 281 (2004).
    3. Garcia v. Google, Inc., 786 F.3d 733 (9th Cir. 2015) (en banc).

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