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

handle is hein.journals/jointpro15 and id is 1 raw text is: KEYNOTE ADDRESS CENSORSHIP IN THE GUISE OF AUTHORSHIP: HARMONIZING COPYRIGHT AND THE FIRST AMENDMENT 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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