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

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

Preface

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.

-ix-

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