Hastings Law Journal Volume 61 | Issue 5 Article 1 1-2010 Copyright Infringement and Harmless Speech Christina Bohannan Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Christina Bohannan, Copyright Infringement and Harmless Speech, 61 Hastings L.J. 1083 (2010). Available at: https://repository.uchastings.edu/hastings_law_journal/vol61/iss5/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact
[email protected]. Articles Copyright Infringement and Harmless Speech CHRISTINA BOHANNAN* Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes real harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right-of-publicity laws, require that the defendant's speech is likely to cause harm, copyright law does not make harm a requirement of infringement. Copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, but harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement, and therefore burden speech, where harm is nonexistent or purely speculative.