First Amendment Based Copyright Misuse

ABSTRACT We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or--if judges accept the proposal of this Article--courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others' speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new works by preventing subsequent creators from using copyrighted work to make their own, new speech. Courts have long recognized this inherent tension and have also recognized that the conflict should sometimes be decided in favor of allowing a subsequent speaker the right to make unauthorized use of others' copyrighted works. Accordingly, courts created, and Congress codified, the fair use defense to copyright infringement, which allows unauthorized use of copyrighted works under certain circumstances that encourage speech and creation of transformative works. The problem with fair use, however, is that the informational uncertainties and transaction costs of litigating the defense make the fair use right unavailable to many as a practical matter. Subsequent creators are left open to intimidation by copyright holders threatening infringement suits. By decoupling the copyright misuse defense from its basis in antitrust principles and basing it instead in First Amendment speech principles, the legal protections for fair use can be shifted from theoretical rights to practical rights for many. Copyright misuse has two deterrent features that will allow fair use as a practical right. First, a copyright holder's misuse of its copyrights against anyone can be used to prove the defense of misuse. Second, once misuse is found, the copyright owner loses its ability to enforce its copyright against everyone, at least until the misuse is cured. Thus, by defining as copyright misuse the unjustified chilling of speech that some copyright holders perpetrate, the misuse defense will encourage important speech rights that are currently underprotected. TABLE OF CONTENTS INTRODUCTION I. THE (MIS)USE OF COPYRIGHT To CHILL SPEECH AND INQUIRY II. THE FAILURE OF FMR USE AS A PRACTICALLY AVAILABLE RIGHT III. SURVEY OF PREVIOUS PROPOSALS TO ENABLE FMR USE RIGHTS IV. HISTORY AND DEVELOPMENT OF COPYRIGHT MISUSE A. Copyright Misuse's Growth out of Antitrust-Based Patent Misuse B. Critiques of Patent and Copyright Misuse Based in Antitrust 1. Critique One: Antitrust Interests Are Better Vindicated Directly Through Antitrust Claims 2. Critique Two: Patent Uses that Courts Have Ruled Anticompetitive in the Past Actually May Be Harmless or Even Procompetitive C. The Decline of Misuse Defenses Based on Antitrust Principles? V. THE CASE FOR BASING COPYRIGHT MISUSE ON FIRST AMENDMENT SPEECH INTERESTS CONCLUSION INTRODUCTION We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or--if judges accept the proposal of this Article--courts could reinvigorate the copyright misuse defense to make it serve as a protector of statutorily guaranteed First Amendment speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. The Copyright Act grants authors exclusive rights to their works, and thus, if they create works that the public is willing to buy, they can profit from their creations. But copyright law can also deter speech, and discourage the creation of new works, by preventing subsequent creators from using copyrighted work to make their own, new speech. …