Maryland Law Review
Margot Kaminski, Copyright Crime and Punishment: The First Amendment's Proportionality Puzzle, 73 Md. L. Rev. 587 (2014), available at https://scholar.law.colorado.edu/articles/219.
The United States is often considered to be the most speech-protective country in the world. Paradoxically, the features that have led to this reputation have created areas in which the United States is in fact less speech protective than other countries. The Supreme Court's increasing use of a categorical approach to the First Amendment has created a growing divide between the US. approach to reconciling copyright and free expression and the proportionality analysis adopted by most of the rest of the world.
In practice, the U.S. categorical approach to the First Amendment minimizes opportunities for judicial oversight of copyright. Consequently, as corporations lobby for ever-increasing penalties and enforcement mechanisms, the United States has fostered one of the world's least speech-friendly criminal copyright regimes. The United States is exporting that regime, including its presumption that copyright is unrelated to freedom of expression. Instead of exporting flawed presumptions, the United States should reintegrate proportionality concepts into First Amendment doctrine to examine the proportionality of sanctions for speech that has functionally been deemed unprotected by the First Amendment.
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