This essay explores the relationship between copyright and free speech by critically evaluating the proposition that conflicts between the two can be eliminated because the Framers intended both to be engines for free expression. My purpose is not to set forth a comprehensive theory of copyright and free speech, but is more modest. This essay argues that while useful, reference to the Framers' intent only goes so far in avoiding conflicts between copyright and free speech, and when viewed outside of the facts presented by Harper & Row and Eldred, reliance upon the Framers' intent arguably increases such conflicts. Moreover, this essay suggests that efforts to minimize free speech concerns in copyright cases by relying upon the Framers' intent beyond Harper & Row and Eldred represent copyright Lochnernism.


First Amendment, copyright, free speech, Harper & Row, Eldred, Framers' intent

Publication Date


Document Type


Publication Information

57 Case Western Reserve Law Review 863 (2007)


COinS Raymond Shih Ray Ku Faculty Bio