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The Freedom of Imagination: Copyright's Constitutionality
Jed Rubenfeld
Copyright's tensions
with the First Amendment, long suppressed in the case law, have become
increasingly apparent. This Article first shows the insufficiency of all
the standard claims purportedly explaining why copyright law —- the
country's most systematic, sweeping set of speech regulations —- is not
unconstitutional under the First Amendment. It then argues for a new
evaluation of copyright's constitutionality, based on the principle that
individuals cannot be punished for what they imagine or for communicating
their imagination to others. This freedom of imagination, the Article suggests,
best captures the protection of art and entertainment, as well as other
core First Amendment protections. Measured in light of the freedom of
imagination, copyright's central prohibition of piracy is fully
constitutional, but its prohibition of unauthorized derivative works is
not.
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