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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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January 08, 2004

Solum the First Amendment, Copyright and Originalism

Posted by Ernest Miller

Prof. Larry Solum discusses a recent panel on copyright at the annual meeting of the Association of American Law Schools on Legal Theory Blog (Blogging from Atlanta 05, Association of American Law Schools, Section on Constitutional Law, Copyright and the First Amendment). His brief notes are a good starting point for looking at and discussing various threads regaring the intersection of the First Amendment and copyright law. Of course, his post serves to make the point that right now there is no coherent theory, nor is there a consensus as to how we will move towards one.

Of particular interest is the discussion regarding Originalism and the relation between the First Amendment and copyright law. Taking off on Prof. Neil Netanel's fairly mainstream view that the First Amendment acts as a restriction on a plenary (Solum's word) copyright power, Solum proposes an alternative (with an evocative metaphor), that the copyright power is a an island of power in a sea of liberty. Very interesting, though I am not convinced. Scrivener's Error replies to Solum and has some very good points (Originalism, Copyright, and the First Amendment).

I, of course, remain convinced that telecommunications law, copyright and the First Amendment are related throught the concept of distribution ... that they can all be analyzed through the lense of rights of distribution.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression


1. Cypherpunk on January 9, 2004 10:51 PM writes...

Solum's point on originalism is interesting but doesn't quite seem to work. He seeks an interpretation which makes "the collision between freedom of speech and copyright impossible", and he suggests that the Constitution and Bill of Rights should be construed in that way.

That seems hopeless, because by its very nature, legislatively imposed copyright is an inherent restriction on speech. All Solum can point to is that the original limits were shorter, for 28 years, and the restrictions were narrower, not covering derivative works.

But do these weakenings of present-day restrictions meet Solum's claim of no "possibility of collision between copyright and freedom of speech"? I don't see it. These are changes in degree, but not in kind. There are fewer collisions with the more limited notion of copyright, but they are not eliminated entirely.

This seems to undercut Solum's entire argument that the framers intended that there would be no contradiction between the First Amendment and the rest of the Constitution, including the copyright clause. They intended the whole thing to work without one part colliding with another. That's why he is forced into this awkward claim that modest restrictions to term and scope of copyright somehow completely eliminate the conflict with free speech.

If we don't accept that, and I don't see how we can, then we must admit that these conflicts and collisions were present from the beginning, and we are back to using other arguments to figure out which side should win. Solum's originalism doesn't cut through this knot in the way that he hopes.

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