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

December 5, 2008Duke Law News

David Lange admits that he has always liked “coloring outside the lines” — writing what he thinks and believes, whether or not it is “practical.”

Lange, the Melvin G. Shimm Professor of Law, and H. Jefferson Powell, Duke’s Frederic Cleaveland Professor of Law and Divinity, have done just that in their latest book, No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford University Press, 2008). Not only do they propose a novel reading of the First Amendment, they also re-imagine copyright and other expressive parts of intellectual property as a result.

Copyright is generally upheld against First Amendment claims, Lange says, and this is so despite the awkward fact that a state-sanctioned system awarding exclusive rights in expression obviously abridges freedom of speech and press. “Courts generally use a hierarchy of balances in assessing whether or not a given interest in expression is abridged. In the case of copyright, however, we do not even bother to balance the interests. The Supreme Court simply decrees that copyright in its traditional forms ordinarily does not violate the Amendment.”

The Supreme Court, in fact, has never directly addressed questions of conflict between the First Amendment and copyright law. “I suspect that what this illustrates is the tendency of law to allow our category schemes to obscure substantive issues,” says Powell. “The discussion of IP and the Constitution had been assigned to the domain of the copyright and patent clauses before judicial interpretation of the First Amendment was really up and running, and no one really questioned that intellectual division of labor for a long time except the brilliant [Melvin] Nimmer.”

Nimmer, the late preeminent copyright scholar, proposed that as long as the underlying idea itself is free, the granting of exclusive rights for expression, for limited times, would not necessarily conflict with the First Amendment, Lange explains. “What’s more, copyright’s fair use doctrine offers at least a limited right to excerpt or otherwise deal in a supposedly fair way with expression in works while they are under copyright,” he says. “On these grounds, both Nimmer and the Court have thought that surely copyright poses little threat to First Amendment interests.”

For their part, however, Lange and Powell view copyright as posing serious obstacles to our individual and collective ability to engage in expression, whether creative or otherwise. “These obstacles represent not just an affront to the public domain in a larger sense but … also a more focused affront to the First Amendment,” says Lange. Both situations could be rectified, he suggests, if the First Amendment were read as an absolute.

“Justice [Hugo] Black, when he sat on the bench from 1937 to 1971, was, among other things, a proponent of what he called ‘the absolute rule of the First Amendment.’ As most of us know, Black thought that ‘no law’ meant no law. The rule is that Congress is simply not free to make a law that abridges freedom of expression,” says Lange. As Nimmer himself conceded, if Black’s view were to prevail, then copyright would certainly conflict with the First Amendment.

Taking “no law” to mean literally no law moves “from a balancing of competing interests to a direct definition of what an abridgement of speech and press means,” Lange says. Since expression is at the heart of what copyright protects in some at the expense of others, it would be difficult to say that copyright does not abridge expression.

What would happen to copyright if the First Amendment were read as an absolute? “Somewhat to our surprise, we came to the conclusion that a good deal of what we recognize as protectable in copyright we might be able to salvage,” says Lange. “We might, for example, still be able to grant exclusive rights in streams of actual profits from a work. But we would not be able to go on supporting the kind of exclusive rights in expression that we have accustomed ourselves to recognizing in the case of copyright.

“Copyright proprietors could no longer prevent others from expressing themselves freely, whether or not that expression might infringe under current law,” he adds. “That would be so because the First Amendment would now actually say, with respect to exclusivity abridging expression, ‘No law means no law.’”

How practical is that suggestion? Powell and Lange agree that their book is unlikely to spark a dramatic change in copyright or intellectual property law. But they share a hope that their ideas will inspire a more robust debate about the right to free expression and the limitations that copyright law imposes.

“I do hope that our arguments will show others in Congress, the judiciary, the academy, the media and elsewhere that a number of widely-held assumptions are simply wrong,” Powell says. “It is not true that there is no defensible version of Justice Black’s absolutism. It is not true that allowing the First Amendment a serious role in shaping IP will simply destroy IP. It is not true that freedom of expression and the provision of incentives for expression have to be reconciled by simply subordinating freedom to incentives  more or less the current position  or that freedom is inherently incompatible with the creation of incentives.”

And who is to say that in the end their effort will not gain adherents? Lange recalls that he had expected his 1981 essay on the then-obscure subject of the public domain to go unnoticed. Instead, his ideas seemed to spark a lively and abiding interest in the subject in discourses that have now moved well beyond his original aims, both within the academy and in the field of intellectual property at large.

“Meanwhile, if we in the academy do not exercise our freedom to offer the opinions we actually hold, never mind whether they may gain immediate favor, then I would judge our profession a very dreary business,” Lange says.

“I hope,” he adds, “that when we speak about re-imagining intellectual property in the image of an absolute First Amendment, as we do in our book, that others will find our arguments stimulating and persuasive. But if not, then it will still have been well worthwhile for us simply to have done as Justice Brandeis suggested the First Amendment was intended to make it possible for all of us to do: ‘to think as we please and speak as we think.’”
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