Free Speech Institutions and Fair Use of Copyrighted Work: A New Agenda for Copyright Reform

Document Type


Publication Date



This article analyzes copyright law as a growing burden on free speech institutions such as newspapers, television stations, websites, and software platforms. Free speech institutions, including websites, allow residents of the United States to engage in a variety of activities: read, watch, access, write, perform, display, transform what has been written, and publish what is written or transformed. Some of these activities—for example, making a video commentary on a recent political speech out of popular film clips—make up “remix” or “read-write” culture. Copyright law potentially outlaws the unauthorized reading, watching, performing, transforming, or publishing of existing work. Unless fair use reliably allows people to remix our culture without risk of liability, it will stand in need of reform. Emerging copyright norms could harm the freedom and diversity of the Internet. In an era of supposed overregulation of business by Washington, a surprisingly large number of corporations and trade associations are proposing restrictive copyright norms. In this way, groupings of media and Internet corporations have become prolific sources of proposed norms governing Internet speech and communication. Among other efforts, the Motion Picture Association of America and the Recording Industry Association of America have led a coalition of “creative community organizations” asking the Obama administration to pressure websites such as YouTube to agree to a series of Principles for User-Generated Content Services (UGC Principles), which were negotiated between the Microsoft Corporation and a series of media conglomerates including NBC Universal and Viacom. Among other things, the UGC Principles call for automatic deletion (or filtering) of quotations of media content in audio or audiovisual form, without consistent regard to fair use or other exceptions to copyright. While some users may be on notice and willing to tolerate such deletions, other users would prefer a hearing in court as movie studios and book publishers receive in cases of alleged plagiarism of screenplays, novels, or background art. Several publisher associations and an Open Book Alliance made up of, Microsoft, Yahoo!, and various partner organizations filed briefs in federal court arguing that Google should be restricted from contracting with publishers to create digital libraries of books. The Media Bloggers Association, Newspaper Association of America, and other groups have made various proposals that fair use or the public domain of facts and ideas be restricted online in ways that are contrary to established customs in print and on television, as well as online. Media corporations asked the Federal Communications Commission to enact a National Broadband Plan that would allow Internet filters to prohibit the use of fair use clips. These corporations want universities to use “in-house methods of blocking infringing [Internet] transmissions and/or blocking and filtering technologies offered in the marketplace[.]” This Article therefore describes the risk of non-price-related restraints on upstart Internet and social media companies such as a requirement to filter out quotations. Such restraints do not burden incumbents like the Associated Press, Comcast-NBCU, or Viacom, which do not confront prepublication filtering of their newspaper articles, television programs, or motion pictures. Antitrust cases and constitutional doctrine are slow to evolve, however. For this reason, the Article calls for reform of the fair use privilege of free speech institutions in four key areas: burden of proof, due process, liability standards, and injunctive relief. The reforms are intended to serve core constitutional values: liberty of expression, the right to petition the government for redress of grievances, communicative privacy, separation of powers, and the rule of law.