No Law: Intellectual Property in the Image of an Absolute First Amendment

454 Pages·2008·7.99 MB·English

by  David Lange

N O L A W

N O L A W
Intellectual Property in the Image of
an Absolute First Amendment
David L. Lange
and
H. Jefferson Powell
stanford law books
An Imprint of Stanford University Press
Stanford, California
© 2009 David L. Lange and H. Jefferson Powell. All rights reserved.
No part of this book may be reproduced or transmitted in any form or
by any means, electronic or mechanical, including photocopying and
recording, or in any information storage or retrieval system without
prior written permission.
Printed in the United States of America on acid- free,
archival- quality paper
Library of Congress Cata loging- in- Publication Data
Lange, David, 1938–
No law : intellectual property in the image of an absolute First Amendment
/ David L. Lange and H. Jefferson Powell.
p. cm.
Includes bibliographical references and index.
ISBN 978-0-8047-4578-9 (cloth : alk. paper)—ISBN 978-0-8047-4579-6
(pbk. : alk. paper)
1. Intellectual property—United States. 2. United States. Constitution.
1st Amendment. 3. Freedom of expression—United States. I. Powell,
Jefferson, 1954– II. Title.
KF2979.L37 2008
346.7304'8—dc22 2008011828
Typeset by Westchester Book Group in 10/15 Sabon
For my wife and companion, Teresa—creative, expressive, and wise,
and always the better writer.
—D. L.
For my daughter Sara, whose enthusiastic interest
makes writing a joy.
—J. P.

Contents
Preface ix
Ac know ledg ments xiii
part i
intellectual property in america:
the idea and its merits
1 Unfair Competition and Trademarks 3
2 Patents, Copyright, and Neighboring Rights 34
3 Exclusivity versus Appropriation:
Some Questions and Costs 65
4 “Exclusive Rights” and the Constitution 108
part ii
intellectual productivity and freedom
of expression
5 Foreshadowings: International News Ser vice v.
Associated Press 149
6 Intellectual Productivity and Freedom of Expression:
The Conditions of Their Coexistence 168
contents
part iii
the first amendment in america:
some chapters in a history of debate
7 The Origins of the First Amendment and the Question of
Original Meaning 195
8 The Sedition Act of 1798 and the First
First Amendment Crisis 212
9 Justice Holmes and the Arrival of Balancing 225
10 Justice Black and the Absolute First Amendment 239
part iv
the absolute first amendment revisited:
the amendment as a prohibition on power
11 Constitutional Absolutes in a Holmesian World 263
12 Forward to the Eigh teenth Century 284
part v
summing up
13 Intellectual Property in the Image of an
Absolute First Amendment 305
Notes 327
Bibliographic Note 417
Errata and Apocrypha 419
Index 421
viii
Preface
our book had its beginnings in a series of conversations some
years ago between its authors, who are friends and colleagues on the fac-
ulty of the Law School at Duke University.* Professor Lange, whose
professional interests include intellectual property and entertainment
law, has long been identifi ed with specialists in these fi elds who are skep-
tical of the utility and the impact of the doctrines that limit freedom of
expression. Professor Powell has written extensively on subjects centered
in the history and theories of interpretation affecting the American Con-
stitution. Meanwhile, each of us has had a par ticu l ar interest in the First
Amendment that antedated the conversations that led to this work.
As our conversations continued, we decided to record our growing
conviction that the notions of exclusivity traditionally associated with
the intellectual property doctrines of greatest concern in the context of
expression (chiefl y copyright, but also some aspects of unfair competi-
tion, moral rights, trademark law, and even patent law) ought to be
constrained in favor of a far wider and more complete susceptibility of
that expression to unlicensed appropriation by others. This we thought,
in company with many others who had written on the subject, was at
least minimally necessary in the interest of creative expression. In
truth, however, we were soon convinced that exclusive rights in any
e xpression—whether conventionally creative or not—were simply intol-
erable in a system of law that prizes the right in individuals to think as
they please and to speak as they think—the system of law that Ameri-
cans (and American courts) like to pride themselves in possessing. As we
* The question of voice is a per sis tent one in coauthored works. We have elected to
write in the fi rst person, singular or plural, whenever that is feasible, and in the third
person when that voice seems most likely to yield clarity or otherwise appears appropri-
ate. Regrettably nevertheless, some awkwardness is inevitable, for which we apologize.
ix