Publication Day: My latest article has been published by the Chicago-Kent Journal of Intellectual Property. The article, Copyright Dilution Under Constitutional Scrutiny, explains why the newfound theory of market harm called “copyright dilution“–embraced by the Copyright Office and by Judge Chhabria in dicta in Kadrey v. Meta—would violate the Constitution if it is adopted by courts.
Copyright dilution is not only unprecedented, it is also unconstitutional.
Abstract
This Essay is one of the first in legal scholarship to examine the constitutionality of copyright dilution. Such a radical expansion of copyright is problematic. It stretches copyright beyond the permissible bounds in the Copyright Clause, which limits the grant of copyright, or exclusive rights, to authors in only “their respective writings.” Authors cannot own entire genres, and the non-infringing works of others are not theirs. Moreover, because copyright dilution alters the traditional contours of copyright, both fair use and the idea-expression dichotomy, it must be subject to strict scrutiny under the First Amendment.
Copyright dilution fails. As the Supreme Court recognized, “Mere speculation of harm does not constitute a compelling state interest.” Indeed, the only federal court to embrace copyright dilution as a theory ultimately concluded that the plaintiffs had failed to present anything other than “speculation.” And, by singling out the non-infringing works of only one class of creators—people who believe in and use AI tools to create new expressiom—for disfavored treatment, copyright dilution constitutes impermissible viewpoint discrimination. Such targeting of the non-infringing expression of only people who believe in and use AI—and no others—is viewpoint and speaker-based discrimination.
The paper explains the constitutional throughline that threads copyright law. The constitutional throughline limits the scope of copyright to the protected elements of a copryighted work. That’s why the wholly non-infringing expression of others—that copy no protected elements of a copyrighted work–cannot be penalized or be the basis of market harm or potential copyright liability.
Excerpt:
We quoted some key cases recognizing this fundamental constitutional limit to copyright’s scope:
Full Abstract:
