Über die Autorin bzw. den Autor

David Lange is Melvin G. Shimm Professor of Law at Duke University. He is coauthor of Intellectual Property: Cases and Materials (3rd ed., 2007). H. Jefferson Powell is Professor of Law at Duke University. His publications include The President's Authority over Foreign Affairs: An Essay in Constitutional Interpretation (rev. ed., 2005).

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NO LAW

Stanford University Press

Contents

Preface........................................................................................................ixAcknowledgments................................................................................................xiiiPART I INTELLECTUAL PROPERTY IN AMERICA: THE IDEA AND ITS MERITS1 Unfair Competition and Trademarks............................................................................32 Patents, Copyright, and Neighboring Rights...................................................................343 Exclusivity versus Appropriation: Some Questions and Costs...................................................654 "Exclusive Rights" and the Constitution......................................................................108PART II INTELLECTUAL PRODUCTIVITY AND FREEDOM OF EXPRESSION5 Foreshadowings: International News Ser vice v. Associated Press..............................................1496 Intellectual Productivity and Freedom of Expression: The Conditions of Their Coexistence.....................168PART III THE FIRST AMENDMENT IN AMERICA: SOME CHAPTERS IN A HISTORY OF DEBATE7 The Origins of the First Amendment and the Question of Original Meaning......................................1958 The Sedition Act of 1798 and the First First Amendment Crisis................................................2129 Justice Holmes and the Arrival of Balancing..................................................................22510 Justice Black and the Absolute First Amendment..............................................................239PART IV THE ABSOLUTE FIRST AMENDMENT REVISITED: THE AMENDMENT A S A PROHIBITION ON POWER11 Constitutional Absolutes in a Holmesian World...............................................................26312 Forward to the Eighteenth Century...........................................................................284PART V SUMMING UP13 Intellectual Property in the Image of an Absolute First Amendment...........................................305Notes..........................................................................................................327Bibliographic Note.............................................................................................417Errata and Apocrypha...........................................................................................419Index..........................................................................................................421

Chapter One

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." 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, 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.

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 life property often appears to define the boundary between that which is private (and mine or yours) and that which is public (and either theirs or everybody's), thereby simultaneously setting us apart from society at large and linking us to it. This is commonly understood to be a function of individual or personal autonomy and dignity arrayed against an aggregation of collective undertakings by and with others, the entirety compounded of entitlements and offsetting obligations both simple and complex. Intellectual property undoubtedly has succeeded to this idea of property in some considerable mea sure. The deeper theoretical meanings may remain tentative and unsettled, and perhaps even chimerical; but those who embrace intellectual property most ardently find it tempting to suppose that there is an idea behind it nevertheless, which translates (even if, to some degree, by default) into the ancient overarching idea of property at large-again, an idea in which one's personal, exclusive, and adverse possession is offset by complex public obligations. Understood in this way, the concept of intellectual property serves both an ideal and a pragmatic end. We suppose that it is right and decent that a person should possess the fruits of his intellectual labor. We suppose that possession is desirable in practical economic terms as well, for a decent recognition of this central notion of property is widely thought to serve as an incentive to intellectual productivity that might not otherwise be forthcoming, and to the efficient management of the products that are its consequence. And we imagine that, in the end, not merely the individual but society at large will benefit from this state of affairs.

In this part of our book, we begin by responding to the questions we first posed above. In the first two chapters we briefly sketch the doctrines that intellectual property embraces, proceeding in the order in which we have listed them here, while adding or elaborating upon others. We note the rough correspondences among them, as well as their justifications and anomalies. Then, in two additional chapters that complete this part, we will raise the questions that are the occasion for our later efforts in this book: How are we to judge these intellectual property doctrines on their merits? What benefits do they confer upon us? At what cost to freedoms that we value, especially the freedom of thought and speech? What role does the Constitution play in arriving at the balance that now obtains? And is that role adequate to our needs-or amenable to change?

COMPETITION, FAIR AND OTHERWISE

The term "unfair competition" conveys something of its meaning in the words from which the term is formed. Competition is not generally frowned on in American law, of course, nor was it in the late English law from...