April 13, 2024

Rubenfeld on Copyright and the Constitution

October’s Yale Law Review has an interesting article by Jed Rubenfeld, entitled “The Freedom of Imagination: Copyright’s Constitutionality.” (Disclaimer: I’m not a lawyer and not a legal scholar, so I’m not fully qualified to judge the scholarly merit of the article. What you’re getting here is my semi-informed opinion.)

Rubenfeld argues, convincingly in my view, that standard claims about copyright and freedom of speech don’t stand up to scrutiny. He argues that copyright as now enforced places unconstitutional limits on free speech.

He goes on to explore how copyright can be made constitutional. This involves a detour to discuss the meaning of the First Amendment, followed by the laying of a new framework for copyright. He finds that copyright’s ban on literal copying is constitutional, but the rules regarding derivative works need to be adjusted.

Whether this ultimately is correct is beyond me, but I think the article is worth reading if you’re interested in these issues. I would like to hear the opinions of any readers who are lawyers.

[Link credit: Kitchen Cabinet]