Copyright law is a glaring and unjustified exception to the rule that the government may not prohibit speech without a showing that it causes real harm. While the First Amendment sometimes protects even harmful speech, it virtually never allows the prohibition of harmless speech. Yet, while other speech-burdening laws, such as defamation and right-of-publicity laws, require that the defendant's speech is likely to cause harm, copyright law does not make harm a requirement of infringement. Copyright law considers harm to the market for the copyrighted work as a factor in fair use analysis, but harm is not always required and is so poorly defined that the concept has become circular. Moreover, the defendant ordinarily bears the burden of proof to show the absence of harm. As a result, courts often find liability for infringement, and therefore burden speech, where harm is nonexistent or purely speculative.
Potential explanations for copyright's anomalous treatment are unpersuasive. Copying involves speech as well as conduct, and the fact that copyrights are in some sense property does not justify their aberrant treatment. Moreover, copyright's role in encouraging creative expression does not obviate First Amendment concerns. Drawing from cases holding that speech restrictions must be justified by an important or compelling governmental interest, this Article argues that the First Amendment requires real harm to the copyright holder's incentives in order to impose liability. It also explores the types of harm that might arise in copyright infringement cases. It concludes that demonstrable harm of market substitution is cognizable under First Amendment principles. On the other hand, the First Amendment generally would not permit recognition of harm to the reputation of copyrighted works, or, except in cases of unpublished works, harm to an author or copyright holder's privacy, right not to speak, or right not to associate.
Copyright Infringement and Harmless Speech,
61 Hastings L.J. 1083
Available at: https://repository.uchastings.edu/hastings_law_journal/vol61/iss5/1