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. Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not justify their aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Drawing from cases holding that speech restrictions must be justified by an important or compelling governmental interest, this Article argues that the FirstAmendment requires real harm to the copyright holder's incentives in order to impose liability. It also explores the types of harm that might arise in copyright infringement cases. It concludes that demonstrable harm of market substitution is cognizable under First Amendment principles. On the other hand, the First Amendment generally would not permit recognition of harm to the reputation of copyrighted works, or, except in cases of unpublished works, harm to an author or copyright holder's privacy, right not to speak, or right not to associate. * Associate Professor of Law, University of Iowa. The Author would like to thank Randy Bezanson, Steve Burton, Bill Buss, Herb Hovenkamp, David McGowan, Todd Pettys, Peggie Smith, the participants in the 2008 Intellectual Property Scholars' Conference at Stanford Law School, and the participants in the Iowa Legal Studies Workshop for helpful comments on this Article. The Author would also like to thank the Ewing Marion Kauffman Foundation for financial support and John M. Newman for excellent research assistance. [io831 io84 HASTINGS LAW JOURNAL [Vol. 61:io83 TABLE OF CONTENTS INTRODUCTION....................................................Io84 1. THE FIRST AMENDMENT AND THE ROLE OF HARM. .................. io88 11. COPYRIGHT HARM AND THE FIRST AMENDMENT......... ...... 1097 A. THE SCOPE OF COPYRIGHT COVERAGE, FAIR USE, AND DAMAGES...............................................Io98 B. THE ROLE OF HARM IN FIRST AMENDMENT SCRUTINY OF COPYRIGHT INFRINGEMENT CLAIMS... ................. 1104 C. COPYRIGHT LAW AS CONTENT-BASED OR CONTENT- NEUTRAL SPEECH REGULATION ...................... ...... I io8 III. COPYRIGHT EXCEPTIONALISM: WHY COURTS Do NOT APPLY FIRST AMENDMENT SCRUTINY TO COPYRIGHT LAW..................1115 A. COPYING CONSTITUTES SPEECH...................... ...... II I6 B. COPYRIGHT'S SPEECH-ENHANCING PURPOSE DOES NOT RENDER COPYING UNPROTECTED SPEECH.... .............. 1121 C. COPYRIGHT'S STATUS AS PROPERTY DOES NOT PRECLUDE FIRST AMENDMENT SCRUTINY ............................ 1122 IV. HOW A HARM-BASED APPROACH CAN PROTECT FREE SPEECH IN COPYRIGHT INFRINGEMENT CASES.........................1127 V. DEFINING COPYRIGHT HARM ACCORDING TO FIRST AMENDMENT VALUES....................................................1134 A. MARKET HARM AND COPYRIGHT AS THE "ENGINE OF FREE EXPRESSION" ........................................... 1135 B. NONMARKET HARM: REPUTATIONAL HARM AND THE MARKETPLACE OF IDEAS..................... ............ 1138 C. NONMARKET HARM: THE RIGHT NOT TO SPEAK OR ASSOCIATE AND THE RIGHT AGAINST COMPELLED USES OF PROPERTY...............................................1146 D. NONMARKET HARM: VIOLATIONS OF PRIVACY...... ....... 1152 VI. SUMMARY OF REFORMS AND FURTHER CONSIDERATIONS ................... 1157 CONCLUSION.......................................................1159 INTRODUCTION Once largely ignored, the conflict between copyright law and the First Amendment is now widely recognized' and even considered i. Compare Melville B. Nimmer, Does Copyright Abridge the First Amendment Guarantees of Free Speech and Press?, 17 UCLA L. REV. II8o, ItII (1970) (arguing that the conflict is "a largely ignored paradox, requiring exploration"), with Rebecca Tushnet, Copy This Essay: How Fair Use May 2010] COPYRIGHT INFRINGEMENT AND HARMLESS SPEECH io85 "intractable."' As copyright law prohibits more and more uses of copyrighted expression, it necessarily encroaches upon the ability of others to express themselves through the use of copyrighted material. Many have advocated broader and more active First Amendment protection for uses of copyrighted works, and with good reason. The First Amendment is the constitutional bulwark against government restrictions on speech, and its protection is robust. It "protect[s] speech not because it is harmless, but despite the harm it may cause." 3 Indeed, it even shields speech that encourages violent criminal acts, violates a rape victim's privacy, or is harmful to personal reputation.4 Although the First Amendment sometimes protects even harmful speech, it does not allow the prohibition of harmless speech. The one glaring exception is in copyright law. The constitutional purpose of copyright law is to encourage the creation and dissemination of expressive works by granting copyright holders some control over their works. Yet courts frequently impose liability without proof that the defendant's use of copyrighted material caused any harm that could realistically affect those incentives. Mere copying, not harm, is the touchstone for copyright infringement. While courts generally consider harm to the copyright holder as a factor in analysis of the fair use defense, it is not a strict requirement, and the burden of proof is on the defendant to show the absence of harm. Moreover, harm has been so poorly defined that the concept has become circular. The failure to compensate the copyright holder for virtually any copying may be said to "harm" the copyright holder, simply because the defendant could have paid a license fee for the use. Finally, the damages Doctrine Harms Free Speech and How Copying Serves It, 114 YALE L.J. 535, 546 (2004) (describing conflict as "intractable" because of speech value inherent in acts of copying). See generally DAVID L. LANGE & H. JEFFERSON POWELL, No LAw, at ix (2009); NEIL WEINSTOCK NETANEL, COPYRIGHT'S PARADOX 3-5 (2oo8) [hereinafter NETANEL, COPYIGHT's PARADOX]; Yochai Benkler, Free as the Air to Common Use: First Amendment Constraints on Enclosure of the Public Domain, 74 N.Y.U. L. REV. 354 (1999); Douglas J. Frederick, Note, Watching the Watchdog: Modifying Fair Use of Works Produced by the InstitutionalPress, 87 IOWA L. REV. 1059, 1o63, 1071 (2002); Paul Goldstein, Copyright and the First Amendment, 70 COLUM. L. REV. 983 (1970); Mark A. Lemley & Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 DUKE L.J. 147, 165, 167-68 (1998) [hereinafter Lemley & Volokh, Injunctions]; Lawrence Lessig, Copyright's First Amendment, 48 UCLA L. REV. I057 (2001); Neil Weinstock Netanel, Locating Copyright Within the First Amendment Skein, 54 STAN. L. REV. I1(2001) [hereinafter Netanel, Locating Copyright]; Jed Rubenfeld, The Freedom of Imagination: Copyright's Constitutionality, 112 YALE L.J. i, 5-7 (2002); Eugene Volokh, Freedom of Speech and Intellectual Property: Some Thoughts After Eldred, 44 Liquormart, and Bartnicki, 40 Hous. L. REV. 697 (2003) [hereinafter Volokh, Some Thoughts]. 2. Tushnet, supra note i. 3. Frederick Schauer, Uncoupling Free Speech, 92 COLUM. L. REV. 1321, 1321-23 (1992) (arguing that the tradeoff between "harm-toleration and speech-protection is by no means inevitable" because the beneficiaries of robust speech protection could compensate those who bear the burdens of that protection). 4. See infra Parts I, V. io86 HASTINGS LAW JOURNAL [Vol. 61:i083 provisions of the Copyright Act allow courts to award the plaintiff defendant's profits or statutory damages-without a showing that the defendant's copying has caused the plaintiff any real harm-and to assess damages that are grossly disproportionate to provable harm. Despite the obvious conflict between copyright law and the First Amendment, the Supreme Court has rejected the plea for First Amendment protection for most uses of copyrighted works. In Eldred v.