A Theory of Copyright Harm

Document Type

Book Chapter

Publication Date



This chapter examines the relationship between copyright law, the harm caused by others' uses of copyright material, and free expression. The United States has a very strong tradition of First Amendment protection for speech, including speech that is threatening to others, immoral by the standards of many, or socially disruptive in other ways. The one glaring exception is in copyright law, which often permits infringement actions against speech that is both expressive on the part of the speaker and harmless, or virtually so, to the copyright holder or anyone else. A harm requirement is proposed for copyright infringement that protects both creative innovation and free speech.


Copyright Law, free expression, copyright infringements, harm requirement

Publication Title

Creation without Restraint: Promoting Liberty and Rivalry in Innovation