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Tun-Jen Chiang: Rehabilitating the Property Theory of Copyright's First Amendment Exemption
Michael Ramsey

Tun-Jen Chiang (George Mason University School of Law) has posted Rehabilitating the Property Theory of Copyright's First Amendment Exemption (Notre Dame Law Review, Forthcoming) on SSRN.  Here is the abstract:

A continuing controversy in copyright law is the exemption of copyright from First Amendment scrutiny. The Supreme Court has justified the exemption based on history and the intentions of the Framers, but this explanation is unpersuasive on the historical facts.

There is an alternative explanation: copyright is property, and private property is generally exempt from scrutiny under standard First Amendment doctrine. Many scholars have noted this theory, but they have been uniformly dismissive towards it. For example, Mark Lemley and Eugene Volokh view the property theory as so clearly wrong as to be a “non sequitur,” because it supposedly implies that Congress can declare anything to be property and thereby circumvent the First Amendment.

This Article aims to rehabilitate the property theory. Contrary to its critics, the property theory does not say that anything labeled “property” is exempt, but rather contains two internal limits. First, the government-created rules of the property system must be neutral towards speech, though the private enforcement of those rules can be viewpoint-motivated. Second, even within the context of private enforcement, there must still be some protection against excessive ownership power. Understanding the property theory, including its internal limits, then provides a powerful legal justification for the Court’s treatment of copyright law — one that is far better than what the Court has itself articulated.

RELATED:   Randolph J. May  (The Free State Foundation) and Seth L. Cooper (The Free State Foundation) have posted The Constitutional Foundations of Intellectual Property (The Free State Foundation, 'Perspectives from FSF Scholars', Vol. 8, No. 13, May 10, 2013) on SSRN.  Here is the abstract:

This is the first in a series of relatively short papers exploring foundational principles of intellectual property. This essay explores the Lockean natural rights philosophical premises upon which the foundation of the Constitution's IP Clause rests. The American constitutional order is premised on the idea that government exists to protect life, liberty, and property, and our Framers were influenced significantly by John Locke's assertion that individuals possess a natural right to the fruits of their own labor. The essay shows that James Madison, principal drafter of our Constitution, embraced the Lockean view concerning property rights protection.