This article debunks the myth that the fair use doctrine exists to protect the freedom of speech within copyright. Using the history of fair use in the courts and in Congress, as well as recent case law, the Article demonstrates that fair use is not, and never has been, intended or designed to restrain copyright in the face of the First Amendment. The conflict between copyright and free speech could be lessened by reforming the balance of interests within fair use to eliminate the focus on commercial use and to expand the understanding of the broader public-benefit purpose underlying the Supreme Court's analysis of transformative uses. This broadening of what constitutes a "fair" purpose and character of a use would create an opportunity for judicial balancing of the interests promoted by both copyright and the First Amendment.
The Supreme Court stated in Eldred v. Ashcroft that copyright stands apart from most speech restrictions with respect to First Amendment scrutiny due, in part, to copyright's promotion of speech through the creation and publication of expression. (1) The Supreme Court has also told us on more than one occasion that copyright includes built-in safeguards protecting the First Amendment freedom of expression, namely the fair use defense and the distinction between idea and expression. (2) We are told that these two accommodations are "generally adequate to address" First Amendment concerns, although they do not go so far as to make copyright "categorically immune" from a First Amendment challenge: (3) "[W]hen, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary." (4) As Justice Breyer noted in his dissent in Eldred, the Court in that sentence provides questions, not answers. (5) What are the "traditional contours" of copyright, and have they been altered? If the interpretation of the First Amendment matures in some way, should that not rightfully reopen the question of the interaction between copyright and free speech? And to the extent that the "traditional contours" of copyright have changed, will the Court actually be willing to scrutinize the relationship of copyright and free speech?
In this article, I focus upon the fair use defense as an asserted safeguard of the freedom of speech guaranteed by the First Amendment, leaving to one side the idea-expression dichotomy, the other safeguard heralded by the Court. (6) Following a brief survey of some basic principles underlying copyright and First Amendment protection and the manner in which the First Amendment can restrain copyright, I explore the question of whether the fair use doctrine was intended or designed to perform that function of restraint. The answer to that question is no. Despite the Court's assertion that the fair use doctrine safeguards the freedom of speech within the realm of copyright, I find that under modern First Amendment jurisprudence the structure and current interpretation of fair use miss the mark. (7) As codified in section 107 of the Copyright Act, the fair use doctrine directs courts to consider a matter that would be an improper consideration in any other First-Amendment-sensitive analysis, namely the profit-making purpose of an allegedly infringing use. (8) In addition, although the Court's approach to fair use in Campbell v. Acuff-Rose Music, Inc. (9) shifted the fair use emphasis away from the commerciality of a use, its new focus, transformative use, also diminishes the potential for the first factor to be utilized in recognizing a free speech interest within a fair use defense. Transformation, as contrasted with reproduction or distribution or another non-transformative use of a work, does not hold any greater inherent First Amendment value.
The Supreme Court and lower courts could acknowledge that fair use does not function as a protector of free speech and instead institute separate First Amendment review in appropriate cases. …