Part I of this essay outlines the conflict between copyright and the First amendment as well as, the complementary argument for reconciling copyright and free speech, as it has been formulated by scholars and the Supreme Court. Part II discusses what I have referred to as the Framers' copyright and the extent to which arguments based upon the Framers' intent in this area may reconcile copyright and free speech. Lastly, Part III argues that reliance upon the complementary argument to deny any role for heightened First Amendment review in copyright cases is subject to two interrelated criticisms of Lochner. By relying upon a dynamic baseline between copyright and the First Amendment, broad complementary arguments inject disputed economic theory into the constitution effectively repealing the First Amendment.
Copyright, First Amendment, Lochner
Place of Original Publication
Northern Kentucky Law Review
33 Northern Kentucky Law Review 401 (2006)
Ku, Raymond Shih Ray, "Copyright Lochnerism" (2006). Faculty Publications. 129.