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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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