The paradox referenced in my book‘s title is that copyright serves both as an “engine of free expression” and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse.
Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We can’t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn’t extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work.
Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that’s why I wrote a whole book about the copyright-free speech paradox!)
Neail Netanel writes on The Volokh Conspiracy: