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

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

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

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

Synopsis

The original text of the Constitution grants Congress the power to create a regime of intellectual property protection. The first amendment, however, prohibits Congress from enacting any law that abridges the freedoms of speech and of the press. While many have long noted the tension between these provisions, recent legal and cultural developments have transformed mere tension into conflict. No Law offers a new way to approach these debates.

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.

Excerpt

Our book had its beginnings in a series of conversations some years ago between its authors, who are friends and colleagues on the faculty of the Law School at Duke University.* Professor Lange, whose professional interests include intellectual property and entertainment law, has long been identified with specialists in these fields who are skeptical 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 Constitution. Meanwhile, each of us has had a particular 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 (chiefly copyright, but also some aspects of unfair competition, 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 expression—whether conventionally creative or not—were simply intolerable 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 Americans (and American courts) like to pride themselves in possessing. As we

* the question of voice is a persistent one in coauthored works. We have elected to
write in the first 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.

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