PUBLISHED:December 05, 2008

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

Dec. 5, 2008 — Speaking to a lunchtime gathering of Duke Law faculty and students in early November, David Lange admitted 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 newly released book, No Law: Intellectual Property in the Image of an Absolute First Amendment (Stanford University Press). 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 told his Duke Law audience, 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.”

He recalled an argument in support of this position posed by the late preeminent copyright scholar Melvin Bernard Nimmer: “So long as the underlying idea itself is free, Nimmer thought that granting exclusive rights in expression for limited times, as copyright does, does not necessarily conflict with the first Amendment,” Lange said. “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. 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.” Both situations could be rectified if the First Amendment were read as an absolute, said Lange.

“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.” 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 said. 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,” said 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. 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? “It’s impractical altogether if by ‘practical’ you mean we think it has any likely purchase on law or public policy in the near future,” Lange responded. But he called the time that he and Powell spent on No Law nothing short of “a great effort of love.” And who is to say that in the end their effort will not gain adherents?

Recalling his 1981 essay on the then obscure subject of the public domain, he allowed that he had expected his suggestions would go unnoticed. Instead, they seemed to spark a lively interest in the subject, an interest that continues to flourish to this day, in discourses that have now moved well beyond his own original aims. And this has proven to be so not merely in the academy but 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 said.

“I hope,” he concluded, “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 worth while 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.’”