I wish to make what I hope is a rather modest claim: The current version of copyright, in which free speech problems are solved by keeping copyright owners from controlling certain transformative uses but in which more ordinary unauthorized copying is prohibited, is incompatible with the First Amendment. This is true whether one understands the First Amendment as protecting political speech, promoting democracy or selfgovernment, furthering the search for truth, or enhancing autonomy and enabling self-expression. These descriptions are necessarily incomplete. Most important, my discussion does not address the First Amendment as a purely negative right, protecting speakers from government action based on their speech. Yet if the First Amendment bars only government action, then copyright law itself ought to be unconstitutional as a government restriction on some speakers in order to improve the relative position of others. 1 Rather than defend a particular view of the First Amendment, I hope to offer examples in which copyright law conflicts with free speech as it is understood by a variety of theories. Most obviously, I defend copying as a method of self-expression and self-definition consistent with autonomybased accounts of freedom of speech. My argument also often refers to copying in service of democratic self-governance, which is the purpose of free speech identified by many current theorists of copyright and the First Amendment, including Jack Balkin, Yochai Benkler, and Neil Netanel. 2
Poachers had a formative influence on my work. My first law review article, Legal Fictions, relied on Textual Poachers to help explain fan fiction, and to argue for its merits to audiences largely unaware of the rich traditions of media fandom (Tushnet 1997). Legal Fictions used the features Jenkins found in fanworks to argue that fanworks should be protected as fair use against claims that they infringed the copyrights in the "original" works. The scare quotes are there because of course all works draw on existing material; Gene Rodenberry famously pitched Star Trek as "Wagon Train in space." Only modern copyright regimes require authors to hide their antecedents and claim that genius means invention out of nothing, instead of invention through clever deployment of existing materials. Legal Fictions, like numerous other law review articles that followed it, drew on Textual Poachers for its powerfully sympathetic ethnographic account of fandom. 1
YouTube was founded in the spring of 2005. That summer, viddersthe overwhelmingly female community of video editors who create fan music video out of television and film footage -gathered in Chicago to celebrate the thirtieth anniversary of vidding with a dance party and two cakes: one shaped like a VHS cassette and one like a DVD.It now seems incredible that vidders managed to create and share video for almost thirty years without streaming technology; in fact, in 2005, some vidders were still distributing their work on VHS. However, most vidders had by then switched to digital editing, and some were even cautiously offering their work for download on password-protected sites.
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