The interdependency of fair use and the first amendment

Copyright, Free Speech, and Democracy:Eldred v. Ashcroftand Its Implications for Technical Communicators

“…Patterson (1987) examined this relationship and its complexity in his challenging but well-considered work "Free Speech, Copyright, and Fair Use" using complex historical and legal analysis to argue that the Constitution's intellectual property clause also incorporates free-speech constraints. (I also argued in an earlier work [Herrington, 1998] that fair use and free speech have a correlative relationship in the framework of constitutional and statutory goals, and I still find this argument supportable.) But the relationship among free speech, the constitutional intellectual property provision, copyright, and fair use has become much more complex as a result of the Supreme Court's response to a 2003 case, Eldred v. Ashcroft, that created a new structure for understanding the balance provided in the Constitution's intellectual property clause.…”

Copyright Notices in Traditional and New Media Journals: Lies, Damned Lies, and Copyright Notices

“…This is obvious, but yet scholars have needed to defend fair use and elaborate its importance to scholarship and the progressive culture of information sharing found in university research (Crews, 1993; Frazier, 1999), and more broadly defend the constitutional basis for the public domain of ideas (Benkler, 2003). Fair use is also closely tied to free speech (Burk, 2001), and the two are interrelated to scholarship (Herrington, 1998), as scholars must be free to make unpopular statements. Furthermore, the ties between free speech and democracy are well‐established (Litman, 1999; Pfaffenberger, 2001).…”