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Reconciling what the First Amendment forbids with what the Copyright Clause permits: a summary explanation and review. (Conference on the Public Domain)

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From: Law and Contemporary Problems
Date: 20030101
Author:Van Alstyne, William W.

We need education in the obvious more than investigation of the obscure. Oliver Wendell Holmes (1)

I

INTRODUCTION

At least since an early article by Professor Melvin Nimmer in the 1970s, (2) there has been some general agreement that Congress is fully within its proper power to enact, pursuant to the Copyright Clause of Article I, (3) an act that may nonetheless be of a kind it is forbidden to enact because of the restraints placed upon it by the Speech-and-Press Clause of the First Amendment. (4) But just how or why that can be so (or even that it is in fact so (5)) ...

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