Copyright's Paradox

Abstract Copyright is at once an engine of free expression and impediment to free expression. Copyright law underwrites much literature, journalism, music, art, and film. Yet copyright often stands in the way of speech that would build upon existing expression to convey new messages and artistic perspectives. In a seminal 1970 article, Melville Nimmer, the leading copyright and First Amendment scholar of his day, aptly termed the copyright‐free speech conflict a “largely ignored paradox.” Yet today that conflict has come virulently to the fore, and copyright is increasingly chastised as a tool of private censorship. Why has that happened? What values and practices does the copyright‐free speech conflict put at stake? How should the conflict be resolved? These are the principal questions this book seeks to answer. This book explores the copyright‐free speech conflict as it cuts across traditional and digital media alike. In so doing, it juxtaposes the dramatic expansion of copyright holders' proprietary control against individuals' newly found ability to digitally cut, paste, edit, remix, and distribute popular sound recordings, movies, TV programs, graphics, and texts the world over. It tests whether, in light of these developments and others, copyright still serves as a vital engine of free expression and assesses how copyright does—and does not—burden speech. Taking First Amendment values as its lodestar, the book argues that copyright should be delimited by how it can best promote robust debate and expressive diversity, and it presents a blueprint for how that can be accomplished.