Michael D. Birnhack. "The Copyright Law and Free Speech Affair: Making-Up and Breaking-Up" IDEA: JOURNAL OF LAW & TECHNOLOGY 43 (2003): 233. Available at:


Something strange happens to the First Amendment when it meets copyright law: it disappears. The prevalent judicial response to the argument that there is some tension or conflict between the two legal regimes, is a rosy story of harmonious coexistence, mutual support and admirable natural symbiosis. The Supreme Court held in Harper & Row Publishers v. Nation Enterprises that "Copyright is the engine of free speech", and by thus tying the two legal regimes together it in practice, separated them. The official position regarding this relationship is that copyright law has already taken free speech concerns into consideration, and therefore, the First Amendment is not welcome in the realm of copyright law. As a result, the most notable feature of the relationship between the two regimes is that it goes unnoticed.

This article challenges this picture. I will examine the conflict by reversing the traditional mode of discussion. Instead of diving head on into the proposition that there is a conflict - an avenue taken by many scholars, but one that did not change the judicial repsonse to the conflict argument - I go back one step, and look at the denial of the conflict. The task is one of discourse analysis. I track the development and details of the discourse that has evolved around the conflict - or rather, the no-conflict.

Two forms of denial are recognized. The early narrative assumed a conflict, only to reject it on the basis of the constitutional text, structure and history. I explore the foundations of the early narrative, and argue that it does not withstand scrutiny. The contemporary narrative is then reconstructed, analyzed and criticized. I conclude by pointing to the need to relocate the conflict discourse in a constitutional frame.

The tension between copyright law and the First Amendment is especially crucial today, in the face of the dramatic expansion of copyright law. The rights accorded to authors are stronger than ever before, their duration has been extended, and they have conquered the digital environment, where they have recruited ancillary devices of protection. As the public domain keeps enclosing, it becomes clearer that our freedom of speech is affected. These observations do not necessarily mean that the tension between copyright law and free speech is irresolveable. But it does imply that there is some incompatibility that demands an explanation. It is this incompatibility that I focus on. The reversal of the order of the discussion draws our attention to some aspects that are overlooked when we begin with the proposition about the existence of a conflict. The article argues that we will be better equipped to engage in the conflict after we study its denial.


Intellectual Property

Date of this Version

January 2008