The libertarian position on intellectual property that is most commonly recited is perhaps the most extreme: the outright abolition of copyright as a relic of the past. Though certainly dramatic and not without some merit, the absence of some sort of copyright protection for creators reeks a little too much of Marxist collectivism by denying, if not vilifying, the profit motive. Hence, a more prudent reconciliation between Article I and Amendment I is in order.
It is the purpose of this essay to articulate a standard by which to promote, through practice, an expansion of fair use, specifically as it pertains to what Judge Stewart Dalzell identified in 1996 as “the most participatory form of mass speech yet developed,” the Internet. In the face of a growing, government-assisted, corporate monopoly over ideas and information—to which the Internet has granted mass access—it is necessary to review the intellectual and legal history behind copyright and its relationship to free speech; then to properly distinguish between the dichotomous infringements taking place upon both copyright and free expression. Following a libertarian tradition, it is the position of this paper to favor the freedom to express any idea over the exclusive right to reproduce an expression claimed. In the course of any infringement claim that would come before a judge, it should be the copyright owner who bears the burden of making such ownership clear. And if the courts are to err, then they must err on the side of free speech....
The Citizen-Journalist’s Guide to Copyright and Fair Use on the Internet
By MATT DANKO | POLICY JOURNAL
