Idea/Expression and Free Speech (Was: Copyright Infringement...)

From: Dan L Burk <BURKDANL[_at_]shu.edu>
Date: Tue, 21 Jul 1998 13:34:38 -0400

On 07/20/98, Rod McCarvel <rod[_at_]seanet.com> wrote:
>
> The Supremes have told us that fair use, along with the idea/expression
> dichotomy, represents the necessary first amendment "safety valve" in
> copyright law. In my view, this can't be right.

Jessica Litman <litman[_at_]mindspring.com> has advanced a similar view.
>
> The idea/expression dichotomy is irrelevant with respect to the
> first amendment -- it is freedom of "expression", not freedom of
> "ideas", which the first amendment seeks to protect.

There is a large body of commentary and caselaw disagreeing this assertion -- I believe at least one common conception of the First Amendment is that freedom of ideas is *exactly* what it seeks to protect, and that freedom expression is a vehicle for that goal.

One fairly common argument as to why copyright does not in general offend the First Amendment is that because copyright protects only expression, not ideas, even if a particular expression is restrained by copyright, the underlying idea can always be expressed in some alternative format. I tend to agree with you that this cannot be a complete explanation, but it certainly can go a long way toward resolving the tension between speech and copyright.

> Any claim that the idea/expression dichotomy serves the first amendment
> interest cannot, I believe, be reconciled with the decision in *Cohen v.
> California*: "[W]e cannot indulge the facile assumption that one can
> forbid particular words without also running a substantial risk of
> suppressing ideas in the process." 403 U.S. at 26.

But this only poses a problem if our reading of the idea/expression doctrine is extremely naive. In those cases where suppression (or copyright) of particular expression would suppress an idea, the doctrine of merger may forbid copyright of that particular expression -- this would undoubtedly be the case in a situation analogous to that in Cohen: generally, words cannot be copyrighted. The implication is that merger is a constitutionally required accomodation of copyright to free speech.

> In the interest of full disclosure, I should mention that I wrote a
> paper on this topic which I intend to be publishing on my web page Real
> Soon Now. Anyone who is not already convinced at this point that I am
> a raving fanatic may be interested in looking at the paper when I get
> it posted.

I look forward to it.

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Dan L. Burk
Seton Hall University
burkdanl[_at_]shu.edu

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Received on Tue Jul 21 1998 - 17:27:48 GMT