2010 marks the 300th anniversary of the Statute of Anne, the English legislation that ushered in the modern era of copyright law. The Statute of Anne is celebrated for a number of reasons, and perhaps foremost among them is its rejection of copyright as an instrument of censorship. In a previous essay in this series, I discussed one way in which copyright law historically acted as an instrument of censorship: its refusal to grant protection to works that courts judged immoral. In this essay, I discuss copyright’s role in facilitating a different kind of censorship: lawsuits in which a copyright owner seeks to suppress expression rather than facilitate it.

Suppose a news magazine wants to publish an article about former president Gerald Ford. The article will reveal fascinating, previously unknown details about Ford’s ascension to the presidency and his controversial decision to pardon Richard Nixon. The article’s account is undeniably true, but Ford nevertheless objects. A lawsuit is filed and a federal court rules the magazine’s publication illegal. [...]

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