Copyright law has become the weapon of choice for 21st-century censorship. Copyright violations are ubiquitous, liability can be massive and copyright lawsuits are difficult to fend off. And, perhaps most importantly to the sophisticated censor, the federal courts have almost systematically immunized infringement suits from explicit First Amendment defenses.
In the Recorder article “Copyright Law Has a Free Speech Problem,” One LLP Founding Partner John Tehranian discusses the growing use of copyright law for the purposes of censorship, as well as how this trend undermines both the vitality of our copyright regime and public discourse. “New tools are needed to fight the threat posed by censorious copyright litigation to public debate, expressive rights and freedom of speech,” Mr. Tehranian said. “Reform efforts would ideally introduce a consistent and uniform procedural mechanism for addressing the copyright-as-censorship problem.”
Mr. Tehranian also outlines how some courts have attempted to deal with this problem through procedural machinations, and how the law might better respond to ensure that copyright law is used to vindicate the appropriate economic interests of rightsholders, rather than to censor cultural or political opponents.