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

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

CHAPTER 1

Unfair Competition and Trademarks

WHAT DO WE MEAN when we speak of intellectual property? What ideas lie behind it? What are its merits?

In the United States, until some thirty years or so ago, the term “intellectual property” was not much used and had no clear meaning. American lawyers (practitioners and academics alike) generally spoke directly of unfair competition, trade secrets, trademarks, copyright, or patent law without supposing that these discrete doctrinal fields should be thought of as part of a larger, overarching subject. Even today, when “intellectual property” is in common usage in this country (and is often employed as though it were a term of art), the fact remains that its clearest function is taxonomical: intellectual property is to copyright, for example, as “family” is to “genus” or “species” to “variety.”1 It is understood to embrace the doctrines that make up its constituent parts, rather than to convey a deeper meaning grounded in theory. To be sure, serious efforts at theory have begun to emerge, some of them engaging indeed,2 but none can be said to have gained wide acceptance. Instead, the term suggests at most a rough correspondence among the doctrines it embraces—a correspondence derived from the doctrines, however, rather than the other way around.3

Yet the term “property” itself traditionally conveys a powerful ideological message in which the right of exclusive and adverse possession plays a central role. Many of us share a common (if tacit) understanding of property that is both atavistic and archetypal; we are thus apt to view it as a kind of ur-right invested with ancient but still essential attributes of our selves in our relationships with others. Property in this not unusual sense typically begins with the recognition of something of value (in legal usage, the res, or, literally, “thing”), around which principles for holding the thing to oneself or sharing it with others are defined and redefined from time to time as circumstances may require. In American

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