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Copyright law restricts speech. It restricts what writers may write, what painters may paint, what musicians may compose. It prohibits not only slavish copying, but also creation of entirely new works, so long as those works use--even if only in part-another's expression.' Of course, the Supreme Court has held that copyright law is a valid speech restriction.2 Because the law stimulates entry into the marketplace of ideas, and because the law prohibits only the use of others' expression, not their ideas or the facts they've uncovered, the Copyright Act3 doesn't violate the First Amendment. Nonetheless, as the Court has time and again held, certain procedural safeguards must accompany even substantively valid speech restrictions. One such safeguard is independent judicial review, by appellate courts when reviewing a verdict and by trial courts on motions for judgment notwithstanding the verdict or for summary judgment. Under Bose Corp. v. Consumers Union of United States, Inc.,' appellate courts may not just turn over vague phrases such as "actual malice," "incitement," or "expression, as opposed to idea" to factfinders, and then defer to the factfinders' conclusions

Freedom of Speech and Independent Judgment Review in Copyright Cases