Third-party copyright liability & freedom of speech

By Kristopher A. Nelson in

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Alfred C. Yen of Boston College recently posted A First Amendment Perspective on the Construction of Third Party Copyright Liability on SSRN:

The relatively high risk of chill associated with third party copyright liability suggests that the First Amendment is particularly relevant to the proper construction of this area of law. Indeed, First Amendment principles have a great deal to say about the use of vicarious liability, contributory liability, and inducement, as well as the appropriateness of presumed damages in third party copyright liability.

via Legal Theory Blog: Yen on Third Party Copyright Liability & Freedom of Speech.

As Chen points out, copyright has generally been treated as fully compatible with the First Amendment. This is true even though third party liability — that is, liability by a newspaper, an Internet service provider, or similar — has the potential to stifle speech without the same potential encouragement of speech potentially provided by copyright’s incentives to creation.

In the article, Chen New York Times v. Sullivan and Gertz v. Robert Welch to provide insights into the potential chilling effect of third party liability on speech. Although he labels the article as “preliminary thoughts,” I think he is on to something.