Whither Copyright? Transformative Use, Free Speech, and an Intermediate Liability Proposal

I. INTRODUCTION "In the beginning was the Word, and the Word was with God, and the Word was God."1 We have come a long way from this opening line to the Gospel according to John, as deification has morphed into reification. In 1987, the United States Supreme Court prohibited a nonprofit organization's use of the term "Gay Olympic Games" because of a federal statute which granted an exclusive property right over the word "Olympic" to the United States Olympic Committee ("USOC").2 As the Court found, the value of the term "Olympic" "was the product of the USOC's 'own talents and energy, the end result of much time, effort, and expense,'"3 and, as such, it was within Congress's Commerce Clause powers to reward the USOC with exclusive rights to use the word.4 By granting the USOC intellectual property protection in the use of a single word outside of the commercial sphere, regardless of any potential for consumer confusion, the High Court's ruling consecrated Congress's decision to extend to the USOC powers far beyond the traditional ambit of trademark law.5 In short, the decision marked a fundamental expansion in the gamut of intellectual property protections, despite the potential impact on the expressive rights of those wishing to use the term "Olympic" in noncommercial contexts. In recent years, such cases have spurred a wave of law review literature critiquing intellectual property jurisprudence for failing to appreciate the deleterious impact of trademark and copyright enforcement on the exercise of free speech rights.6 As the argument typically goes, congressional acquiescence to regular copyright-term extensions and the expansion of trademark protection beyond the goal of consumer protection have enlarged copyright and trademark monopolies in a manner that has undermined the "uneasy truce"7 between intellectual property rights and the First Amendment. As a result, internal safeguards such as the fair-use doctrine and the idea/expression dichotomy8 are no longer adequate to protect vital free speech interests. Although a few scholars have argued otherwise,9 the weight of authority in the academy supports the view that a clash exists between intellectual property and First Amendment rights and that copyright and trademark monopolies must be more carefully circumscribed in order to protect expressive freedoms. At first glance, the courts appear to have taken a different view of the intersection of First Amendment and intellectual property rights by systematically dismissing the existence of any clash between the two bodies of law. For example, the possibility of a conflict between free speech rights and copyright has been so seldom acknowledged that only one appellate court-the Eleventh Circuit in SunTrust Bank v. Houghton Mifflin Co.10-has ever explicitly applied the First Amendment's Free Speech Clause to constrain enforcement of a copyright.11 Moreover, in its most salient pronouncements on copyright law, the Supreme Court has explained away any clash between free speech rights and copyright by arguing that any tension can be handled through intrinsic limits on copyright, including fair use and the idea/expression dichotomy. As the Court explained in Eldred v. Ashcroft, "copyright's built-in free speech safeguards are generally adequate to address [any conflict with free speech rights]."12 Similarly, in rejecting a First Amendment argument in Harper & Row Publishers, Inc. v. Nation Enterprises, the Supreme Court ruled that the Copyright Act already embodied First Amendment protections through its "distinction between copyrightable expression and noncopyrightable facts and ideas, and the latitude for scholarship and comment traditionally afforded by fair use."13 Even more strikingly, the courts have uniformly rejected arguments that the anticircumvention provisions in the Digital Millennium Copyright Act14 violate the First Amendment by proscribing speech that would otherwise be available under copyright law's fair-use defense. …