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ARTICLE CONTENTS
[Pages 1-80]
TOP OF ARTICLE
Introduction
I. The First Amendment Argument Against Copyright
A. Standard Responses to First Amendment Claims Against Copyright
1. The Idea/Expression Dichotomy
a. The First Amendment Value of Expression
b. Low-Value Speakers
c. Self-Fulfillment and Stability
d. Vagueness and Subjectivity
2. Fair Use
a. Vagueness
b. Fair Use and Content Discrimination
B. Less Restrictive Alternatives
C. Speech as Property
D. Conclusion
II. The First Amendment Argument for Copyright
A. How Copyright Serves First Amendment Values
B. Implications for General Free Speech Doctrine
1. The Basic Analogy Between Copyright and Other Market-Failure-Based Speech Regulations
a. The Importance of Incentives for Future Speech
b. Copyright’s Effects on Content
2. Differences Between Market-Failure-Based Regulations: Infringement Contrasted to Hate Speech and Pornography
a. Borrowing Versus Attacking
b. The Relationship Between Content Neutrality and Mechanisms of Silencing
c. Diversity
3. Campaign Finance Reform
4. Turner Broadcasting and Semi-Content-Neutral Regulation
III. Coda: A Few Implications for the Scope of Copyright
A. The Importance of Vagueness
B. Commercial Speech: Turning Two Meanings into One
C. Institutional Competence
Conclusion
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