Intellectual Productivity and Freedom of
Expression: The Conditions of Their
AMONG THE THINGS that we have seen thus far is that intellectual property is unlike other forms of property. To begin with, the thing at the center of intellectual property is in fact no thing at all in the ordinary sense of being tangible, but is rather an idea, a concept, a feeling, a perception, an understanding, an expectation, an insight, an identity, a discovery, a practice, an invention, a writing, an expression, or something of the sort. In every instance it is an entity lacking in corporeal substance, and thus dependent for its existence upon nothing more substantial than an intellectual accord—an accord that arguably confers the only sense in which the term “intellectual” property can be understood as having meaning. In Jefferson's charming simile, as candles may be lit one from another infinitely with nothing in result but added light, so the ideas from which intellectual property is spun can be shared endlessly without loss of their identity. In ordinary experience, as Jefferson plainly thought and as Brandeis (echoing Jefferson) himself observed in INS, an idea, “once loosed upon the earth, is free as the air to common use.”1 Nor is this the entirety of the matter, or even the more important insight; for as Jefferson additionally observed in his reflections on the essential nature of an idea, “the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”2 Thus the stuff of intellectual property, once it has been made public, not only need not be exclusively possessed—in fact it cannot be. And this is so whether we will have it so or not.
What we can see as well, then, is that the stuff of intellectual property, once public, is in every instance neither more nor less than the very experience of thought and speech and culture alike—endlessly, reciprocally, unavoidably, and inescapably at large among us, separately and at once. And here is the source of our dilemma when law attempts to intervene with traditional notions of property in the face of traditional