Reconciling what the First Amendment Forbids with what the Copyright Clause Permits: A Summary Explanation and Review

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2003

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"At least since an early article by Professor Melvin Nimmer in the 1970s, there has been some general agreement that Congress is fully within its proper power to enact, pursuant to the Copyright Clause of Article I, an act that may nonetheless be of a kind it is forbidden to enact because of the restraints placed upon it by the Speech-and-Press Clause of the First Amendment. But just how or why that can be so (or even that it is in fact so) is not all that easy to explain. Indeed, on the face of each respective clause, the First Amendment may well quite reasonably be read to acknowledge that the Copyright Clause is a part of the same Constitution. And, since it is, insofar as Congress stays within its boundaries (that is, the 'boundaries' furnished by the Copyright Clause itself), it would arguably be perverse for a court to read the First Amendment as forbidding what the Copyright Clause declares is precisely within the authority of Congress to do. "Of course, the First Amendment is later in time. But nothing on the face of the First Amendment purports to affect the power granted to Congress pursuant to the Copyright Clause. So, again, one may say that whatever is properly done by Congress within the permission of the Copyright Clause ought not be said at the same time to be forbidden by some other part of the Constitution, at least unless that 'other part' so declares, or unless its express provisions are simply incompatible with an earlier part it necessarily displaces and amends. We have already noted that the First Amendment contains no such declaration putting it at odds with the Copyright Clause. And certainly nothing on its face suggests that it in any respect 'amends' (that is, displaces) that clause. The First Amendment is a general admonition -- namely, that Congress shall make no law abridging the freedom of speech or of the press. The Copyright Clause on the other hand is a very specific, enumerated power, expressly granting Congress discretion simply to secure to authors the exclusive right to their respective writings, albeit for limited times rather than in perpetuity. It would seem again, on this basis as well, puzzling to declare that the First Amendment may forbid something the more specifically 'targeted' clause empowers Congress to do. One may well suggest that this is another clear case where the useful maxim, expressio unius, exclusio alterius est, appropriately applies. "It happens I fully agree with those who say the First Amendment 'limits' what Congress may do pursuant to the Copyright Clause, despite the preceding, introductory thoughts. Still, it has seemed to me that the obvious reason that this is so has not yet been adequately explained or expressed. It is to that end that this brief essay, and these quite summary remarks, are meant to be addressed, with suitable thanks (and apologies) to Justice Holmes."

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public domain, intellectual property rights, constitutional law, First Amendment, copyright

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