The Pragmatic Incrementalism of Common Law Intellectual Property

Article excerpt

"Common law intellectual property" refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking mechanisms and techniques that these regimes employ to navigate through several of intellectual property law's substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls "pragmatic incrementalism." It involves the use of pragmatic and minimalist techniques that emphasize: (1) caution in the face of uncertainty; (2) the use of neutral legal standards; (3) customary practices to tailor the regime to different contexts; and (4) balancing the ex ante and ex post effects of adjudication. In working these ideas, courts develop rules that are flexible, context-dependent, and capable of affirming multiple values without looking for a single overarching theory. In the process, the regimes very effectively avoid the problems of uniformity, overbreadth, and ossification. The patent and copyright systems are today in a state of crisis, with scholars and policymakers recognizing the need for a fundamental overhaul. Yet, few have turned to the common law method for solutions. Common law intellectual property, I argue, may provide us with a way forward, by drawing attention to the simple strengths of the common law method and its likely benefits for intellectual property law.


Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property's precise content and coverage.1 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one's image, and other related intangibles. These rights regimes are in turn collectively referred to as "common law intellectual property."2 Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off.

While each of these regimes covers a distinct intangible, they all share the same structural characteristics.3 Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as "antifoundational." Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development "pragmatic incrementalism," in that it exhibits the characteristics of both legal pragmatism and common law incrementalism.

Several of these common law regimes are almost as old as their statutory counterparts, if not older.4 Yet, for decades now, many have voiced their skepticism about the usefulness of these rights, especially in light of congressional activity in the area. …


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