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17 UCLA L. Rev. 1180 (1969-1970)
Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press

handle is hein.journals/uclalr17 and id is 1222 raw text is: DOES COPYRIGHT ABRIDGE THE
FIRST AMENDMENT GUARANTEES
OF FREE SPEECH AND PRESS?
Melville B. Nimmer*
The reconciliation of the irreconcilable, the merger of antitheses, the
synthesis of opposites, these are the great problems of the law.
Benjamin N. Cardozo, The Paradoxes
of Legal Science (1927).
I. THE NEED TO RECONCILE COPYRIGHT
AND THE FIRST AMENDMENT
Before the task of reconciliation can be attempted, it is neces-
sary in the law, as elsewhere, to first identify the conflict or paradox
which gives rise to the need for reconciliation. Jerome Frank has
suggested that we often conceal from ourselves the fact that we
maintain, side by side as it were, beliefs which are inherently in-
compatible . . . . We seem to keep these antagonistic beliefs apart
by putting them in 'logic-tight compartments.' , Nowhere is this
phenomenon better illustrated than in the logic-tight compart-
ments of those devoted to copyright maintaining, on the one hand,
their attitude toward copyright, and on the other, their views on
freedom of expression under the first amendment. Not only is there
generally a failure to relate the one to the other, but there is, more-
over, a failure to perceive that views of copyright and the first
amendment, held side by side, may, in fact, be contradictory.
Whether more closely aligned with the creators, or with the
so-called user groups, copyright practitioners and their clients are
likely to place the recognition of a viable and meaningful copyright
law high on their scales of value. Further, they are likely to oppose
vehemently governmental censorship of literary, musical and artis-
tic works. I would venture to suggest that these two attitudes-fa-
voring copyright and opposing censorship-not only do not appear
to be contradictory, but rather are regarded, by most, as mutually
* A.B., University of California, Berkeley, 1947; LL.B., Harvard, 1950. Professor
of Law, University of California, Los Angeles. Copyright @ 1970 by Melville B. Nim-
mer. This article was adapted from the inaugural Donald C. Brace Memorial Lecture
delivered before the Copyright Society of the U.S.A. in New York City on March 16,
1970. The Lecture is to be published in Bulletin of the Copyright Society of the U.S.A.
1 J. FRANK, LAW AND THE MODERN MIND 30 (1949).
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