Copyright law restricts speech. It restricts what writers may write, what painters may paint, what musicians may compose. It prohibits not only slavish copying, but also creation of entirely new works, so long as those works use--even if only in part--another's expression.(1) Of course, the Supreme Court has held that copyright law is a valid speech restriction.(2) Because the law stimulates entry into the marketplace of ideas, and because the law prohibits only the use of others' expression, not their ideas or the facts they've uncovered, the Copyright Act(3) doesn't violate the First Amendment.
Nonetheless, as the Court has time and again held, certain procedural safeguards must accompany even substantively valid speech restrictions. One such safeguard is independent judicial review, by appellate courts when reviewing a verdict and by trial courts on motions for judgment notwithstanding the verdict or for summary judgment. Under Bose Corp. v. Consumers Union of United States, Inc.,(4) appellate courts may not just turn over vague phrases such as "actual malice," "incitement," or "expression, as opposed to idea" to factfinders, and then defer to the factfinders' conclusions about what constitutes libel, incitement, or copyright infringement. Instead, courts must "conduct an independent review of the record both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow limits in an effort to ensure that protected expression will not be inhibited."(5) Lower courts have properly accepted this principle for trial court review on motions for summary judgment and for judgment notwithstanding the verdict.(6)
In theory--a theory the Supreme Court has accepted as a principle of constitutional law--such independent review prevents prejudiced or erroneous deprivation of constitutional rights by factfinders.(7) If a factfinder erroneously concludes that your book infringes someone else's book, the factfinder hasn't just made a legal mistake: It has made a mistake of constitutional magnitude, and has deprived you of your First Amendment right to write your own expression, even when based on another's idea. Courts must, Bose holds, protect against such mistakes by policing factfinders' decisions.
Beyond this, independent review is also supposed to help prevent future mistakes by making the lines in free speech law clearer and more administrable. Judicial review is part of the "evolutionary process of common-law adjudication" that "give[s] meaning" to legal rules.(8) As courts see more cases of a particular type, they can refine the line between protected speech (such as non-obscene art, innocent error, or copying of ideas) and unprotected speech (such as obscenity, punishable libel, or copying of expression). They might create new subrules that clarify the meaning: of the rules, for the benefit of both future courts and future speakers. Or they might provide benchmarks against which future courts can compare and contrast new fact patterns.
In Part I, we explain why Bose compels independent review of "substantial similarity of expression" determinations.(9) Though the great: majority of circuits have held, without considering free speech issues, that such determinations should be reviewed only for clear error,(10) we believe these circuits are mistaken. The doctrinal demands of Bose are quite clear. In Part II, we argue that there is nothing special about copyright cases that would justify departing from the independent judgment rule. In light of this, giving copyright law a free ride not given other speech restrictions is wrong and corrosive of people's respect for free speech generally.
In Part III, we ask whether this result--and Bose itself--makes sense. The Supreme Court's "First Amendment due process"(11) jurisprudence has been a pragmatic, largely …