Boston College Law School Digital Commons @ Boston College Law School Boston College Law School Faculty Papers 1-1-2009 First Amendment Interests and Copyright Accommodations David S. Olson Boston College Law School,
[email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/lsfp Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Intellectual Property Commons Recommended Citation David S. Olson. "First Amendment Interests and Copyright Accommodations." Boston College Law Review 50, (2009): 1393-1424. This Article is brought to you for free and open access by Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Law School Faculty Papers by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact
[email protected]. FIRST AMENDMENT INTERESTS AND COPYRIGHT ACCOMMODATIONS David S. Olson* Abstract: Copyright law exists to encourage the creation of works of au- thorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it dis- courages, and resolves First Amendment concerns with protections in- ternal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and cor- responding drastic diminution of the public domain in the last three decades. This Article extends the U.S. Supreme Court’s reasoning in El- dred v.