No Law: Intellectual Property in the Image of an Absolute First Amendment
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In eloquent and passionate style, Lange and Powell argue that the First Amendment imposes absolute limits upon claims of exclusivity in intellectual property and expression, and strips Congress of the power to restrict personal thought and free expression in the name of intellectual property rights. Though the First Amendment does not repeal the Constitutional intellectual property clause in its entirety, copyright, patent, and trademark law cannot constitutionally license the private commodification of the public domain.
The authors claim that while the exclusive rights currently reflected in intellectual property are not in truth needed to encourage intellectual productivity, they develop a compelling solution for how Congress, even within the limits imposed by an absolute First Amendment, can still regulate incentives for intellectual creations. Those interested in the impact copyright doctrines have on freedom of expression in the U.S. and the theoretical and practical aspects of intellectual property law will want to take a closer look at this bracing, resonant work.
chapters we briefly sketch the doctrines that intellectual property embraces,6 proceeding in the order in which we have listed them here, while adding or elaborating upon others. We note the rough correspondences among them, as well as their justifications and anomalies. Then, in two additional chapters that complete this part, we will raise the questions that are the occasion for our later efforts in this book: How are we to judge these intellectual property doctrines on their merits? What
knowledge. We accept it as given that most of us are born with some innate desire to communicate with others, a desire that seeks its outlet in expression. We suppose that some of us feel this desire more urgently than do others. We understand that sometimes self-expression can amount to an exercise in creativity, and that some of us are more creative in this sense than others. (We take it for granted that Shakespeare was more gifted than Ben Jonson.) We assume that creativity can be cultivated
originality in one work is generally to confer an entitlement to exclusivity that precludes appropriation of the protected subject matter of that work in yet another work. In each of the cases we have cited, and in scores of others like them, the ultimate outcome is that one person’s defective musculature (or clap of thunder or whatever) provides the basis upon which another person may be silenced by law. This is more than ad hoc; it is arbitrary to an unconscionable degree. The Red Queen herself
l usi v e r ig h t s” a n d t h e c on s t i t u t ion even the most detailed of regulatory schemes. Its preeminent theme is the preservation of expression from regulation. Among other things this has led to an unprecedented legal crusade to maximize the number of ways in which expression can escape the inevitable desire of functionaries and their masters to manipulate the world of ideas and their expression in the interests of government.9 Against the interests, wishes, claims, and protests of
that copyright may threaten. 31 Others who have written since Nimmer, however, have noted that the balance struck in his approach means that copyright concedes essentially nothing; such sacrifice as there may be is largely on the side of the First Amendment. This is at least arguably an opportunistic balance, or one that mistakenly sees compromise where there is only illusion. 32 For when questions of infringement or entitlement are settled in favor of a copyright proprietor, the fact remains