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Publication Date

2008

Abstract

In today's digital age, copyright law is changing. It now attempts to regulate machines. Over the past twenty years, and particularly with the advent of the Internet, copyright holders increasingly have invoked copyright law to regulate directly-even to prohibit-the manufacture and sale of technology that facilitates mass dissemination of expressive works. Although the concerns of copyright holders about the ease of digital copying are understandable,the expansion of copyright law to regulate technologies raises troubling questions. Can the government, consistent with the First Amendment, use copyright law to regulate technologies that facilitate the dissemination of speech? If so, are there any limits to what the government can do? Copyright law traditionally refrained from regulating technologies directly, so these questions scarcely were considered. Today, as emerging technologies are revolutionizing the "Web 2. O"culture of user-created content, these questions have vital importance. They, nevertheless, have escaped attention in legal scholarship. This Article attempts to answer these pressing questions by tracing the historical development of the "freedom of the press" concept incorporated in the First Amendment. It concludes that (i) the Framers understood the freedom of the press as the freedom of the printing press-a speech technology; and (ii) today, the Sony safe harbor operates as a "First Amendment safeguard" within copyright law, designed to protect the freedom of the press and the development of speech technologies. Future attempts by Congress to regulate speech technologies under copyright law must answer to the Free Press Clause or the Sony safe harbor

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