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

By David L. Lange; H. Jefferson Powell | Go to book overview

Notes

CHAPTER 1

1. We think we remember encountering a similar analogy elsewhere, but cannot locate the source. Kindly consider this footnote an ac know ledg ment in absentia.

2. See, e.g., Madhavi Sunder, “IP3,” Stanford Law Review 59 (2006): 257.

3. Note here a conventional distinction between “industrial property” (unfair competition, trade secrets, trademarks, patents, and utility models) and “intellectual property” (copyright and neighboring rights, such as droit moral), a distinction widely observed elsewhere in the world but largely ignored in the United States, where the latter term is taken to embrace all of the doctrines. We begin our discussion of the subject in plenary terms according to the fashion in the United States. But our interest ultimately is in expression. Thus, in the end, our usage of the term will often accord with the more limited understanding it is given elsewhere. Meanwhile, our colleague Jerome Reichman has observed in a personal conversation that a more elaborate understanding of the conceptual origins of intellectual property is possible than we have offered in the text. We do not understand him to disagree with us, however, when we describe our narrative as “conventional.” For our purposes, we think it will suffice to begin our discussion as we have done, leaving the more detailed account of origins for others to whom that account may have greater significance than it does for our project.

4. Laura Underkuffler, The Idea of Property: Its Meaning and Power (New York: Oxford University Press, 2003).

5. Wendy Gordon, “An Inquiry into the Merits of Copyright: The Challenges of Consistency, Consent, and Encouragement Theory,” Stanford Law Review 41 (1989): 1343; see also Mark Lemley, “Ex Ante Versus Ex Post Justifications for Intellectual Property,” University of Chicago Law Review 71 (2004): 129.

6. Readers who are already familiar sssith the doctrines may choose to skip ahead, presumably without loss—though in our narrative here we may assume or propose an understanding that is in fact foreign to their own.

7. Our discussion of the subject begins, as is conventional, with the semiobligatory paean to competition. See generally Restatement (Third) of Unfair Competition, § 1 cmt. a (1995). The reader will eventually see, however, that intellectual property and competition are fundamentally antithetical. For further discussion on Wal-Mart and its effect on the modern economy, see generally Charles Fishman, The Wal-Mart Effect: How the World's Most Powerful Company Really Works—and How It's Transforming the American Economy (New York: Penguin Books, 2007).

8. See Richard Posner, The Economics of Justice (Cambridge, MA: Harvard University Press, 1981): 94–95.

9. Tuttle v. Buck, 107 Minn. 145 (1909).

-327-

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