One of the key worries about copyright is how it can be used as a tool for censorship if not watched carefully. Stephan Kinsella points us to an example I was not previously aware of, in which eccentric and reclusive billionaire Howard Hughes once purchased the copyrights on a series of articles about himself
in order to try to block the publication of an unauthorized biography that was largely based on those articles. Looking into this further, what's amazing is that this strategy almost worked. The lawsuit that Hughes brought against Random House and author John Keats was successful in getting an injunction at the district court level, and was only overturned on appeal
. That appeals court ruling has some interesting quotes in it, including questioning the fact that Hughes clearly bought the copyright just to sue (sound familiar?) and recognizing the clear First Amendment issues at stake:
The spirit of the First Amendment applies to the copyright laws at least to the extent that the courts should not tolerate any attempted interference with the public's right to be informed regarding matters of general interest when anyone seeks to use the copyright statute which was designed to protect interests of quite a different nature.
So while the end result here was good, the fact that this actually did work at the lower level highlights why it's important to constantly view actions in the name of copyright law against the First Amendment. It has become all too common for people to brush aside the natural conflict between copyright law and the First Amendment, and make misleading claims about how the "safety valves" of fair use and the idea/expression dichotomy mean there is no conflict. This is not true. There is an inherent conflict, and it's important that courts recognize this and weigh copyright law against the First Amendment. Fair use and the idea/expression dichotomy may
help alleviate that conflict, but they are often applied arbitrarily and with little regard to the key First Amendment issues.