Rehabilitating the Property Theory of Copyright's First Amendment Exemption

Article excerpt

ABSTRACT

A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.

There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been harshly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a "non sequitur," because it supposedly implies that Congress can declare anything to be property and thereby circumvent the First Amendment.

This Article aims to rehabilitate the property theory. Contrary to its critics, the property theory does not say that anything labeled "property" is exempt, but rather contains two internal limits. First, the government-created rules of the property system must be content and viewpoint neutral, though the private enforcement of those rules can be viewpoint motivated. Second, even within the context of private enforcement, there must still be some protection against excessive ownership power. Understanding the property theory, including its internal limits, then provides a powerful legal justification for the Court's treatment of copyright law--one that is far better than what the Court has itself articulated.

INTRODUCTION

A longstanding issue in the copyright literature is the relationship between copyright law and the First Amendment. Copyright inherently restricts speech in the sense of prohibiting infringers from printing copyrighted books, selling copyrighted albums, or publicly performing copyrighted plays. (1) Notwithstanding this speech-restricting effect, however, the Supreme Court has repeatedly held that copyright is generally exempt from First Amendment scrutiny. (2) Many scholars have criticized this exemption as an unprincipled and unwise carve-out from ordinary First Amendment jurisprudence. (3) This Article seeks to defend the Court's doctrine against these criticisms, though it does so on grounds that are quite different from what the Court has itself articulated. As I shall explain, copyright is and should be generally exempt from First Amendment scrutiny because copyrights are a form of personal property, and the private enforcement of a property right is generally not subject to First Amendment limits.

This claim might seem obvious, but it runs against the scholarly consensus. (4) For example, Mark Lemley and Eugene Volokh call the property theory a "non sequitur," (5) while Jed Rubenfeld calls it an "unthinking defense" of copyright's constitutionality. (6) The unpopularity of the property theory is also reflected in the fact that, although the Supreme Court has rejected the challenge to copyright's constitutionality, it has done so entirely without reference to copyright's status as property. (7) Instead, the Court's rationale is based on the supposed intent of the Framers of the First Amendment. (8)

My goal in this Article is to explain why the property theory is far superior to the Framers' intent theory in providing a coherent framework to explain the Court's doctrine. (9) And I argue that the scholarly criticisms of the Court's doctrine in this area are mistaken. Before proceeding further, however, it is important to clarify what my argument is not about:

First, I make no claim about whether, as a matter of first principles, copyright should be considered property. My claim is only that, as a matter of constitutional law doctrine, the status of copyright as property is well settled, and I therefore take this status as a given for purposes of my analysis. On the deeper theoretical question I am agnostic.

Second, my claim does not endorse a Blackstonian view of property or of copyright. …