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Providing a vital economic incentive for much of society's music, art, and literature, copyright is widely considered "the engine of free expression"--but it is also used to stifle news reporting, political commentary, historical scholarship, and even artistic expression. In Copyright's Paradox, Neil Weinstock Netanel explores the tensions between copyright law and free speech, revealing the unacceptable burdens on expression that copyright can impose. Tracing the conflict across both traditional and digital media, Netanel examines the remix and copying culture at the heart of current controversies related to the Google Book Search litigation, YouTube and MySpace, hip-hop music, and digital sampling. The author juxtaposes the dramatic expansion of copyright holders' proprietary control against the individual's newly found ability to digitally cut, paste, edit, remix, and distribute sound recordings, movies, TV programs, graphics, and texts the world over. He tests whether, in light of these and other developments, copyright still serves as a vital engine of free expression and assesses how copyright does--and does not--burden free speech. Taking First Amendment values as his lodestar, Netanel offers a crucial, timely call to redefine the limits of copyright so it can most effectively promote robust debate and expressive diversity--and he presents a definitive blueprint for how this can be accomplished.
dependent on copyright for sustenance. I do not mean to be dismissive of that viewpoint; as I will discuss, copyright has traditionally played an important role in underwriting creative work and supporting professional authorship. But stories about ‘‘[s]acriﬁcial days devoted to . . . creative activities’’ have dominated copyright discourse for some three centuries—and have often been used by copyright industries to gain support for new entitlements that only indirectly beneﬁt actual creators, if
substantial similarity—many cases go the jury with the amorphous instruction to make a subjective, even emotional assessment of ‘‘whether defendant took from plaintiff’s works so much of what is pleasing to [the lay audience] that defendant wrongfully appropriated something which belongs to the plaintiff.’’27 Moreover, as we have seen with hip-hop, a defendant who has copied verbatim only a minuscule portion of a preexisting work and incorporated it as a minuscule portion of his own work may
public discourse and the store of knowledge. Deﬁning and delimiting copyright—determining copyright’s duration and scope and delineating the bounds of fair use, compulsory licenses, and other free speech safeguards—is thus inherently a choice about how best to further that objective. As such, that choice necessarily implicates fundamental normative questions of free speech policy regarding the desired balance between commercial and noncommercial expression and between wealthy and poor speakers.
property and private causes of action to First Amendment scrutiny. Courts have brought the First Amendment to bear on the laws of trademark, trade secret, the right of publicity, defamation, the right of privacy, tortious interference with business relations, intentional inﬂiction of emotional distress, a private right of action for damages caused by illegal wiretapping, and, in some instances, personal and real property. First Amendment scrutiny does not always mean that the speaker prevails.
Los Angeles Times and Washington Post news articles and then added remarks and commentary critical of the articles. Visitors also discussed the underlying news events covered in the articles. The Times and Post sued to stop the copying and posting of their articles. In response, Free Republic’s operators asserted a fair use and First Amendment defense. They contended that copying was necessary to enable Free Republic Web site visitors effectively to express their views concerning media coverage