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

by David L. Lange and H. Jefferson Powell
Stanford University Press, Palo Alto, CA, 2009
456 pp. Trade, $75.00; paper, $27.95
ISBN: 978-0-8047-4579-6; ISBN: 978-0-8047-4578-9.

Reviewed by Richard Kade
Sunnyvale, CA, USA

ubiq_icon@hotmail.com

At first glance, this scholarly work might seem too narrow in scope to interest any but those most intimately involved in the practice of copyright and patent law until one considers that interpretation of the Constitutionality of these laws is ultimately what affects each of us in daily life. Ideally, while a good definition of the term intellectual property (as well as related concepts of intellectual assets and intellectual capital) would have been useful, the authors dutifully canvass existing precedent sufficiently to lay good enough groundwork for readers' appreciation in subsequent chapters of this "irreverent polemic" -- or as the blurb also terms it "legal fantasy" (in the sense more of Liszt as viewed perhaps through 20/20 hindsight of, say, Jerry Garcia?).

One is well served by remembering the analogy attributed most often to Otto von Bismarck about the making of law and sausages. In that regard, perhaps the most basic idea of "intellectual content" would have been more clearly driven home by relating how network lawyers shied away from litigating over use of the term as it pertained to David Letterman's "Stupid Pet Tricks" and the like when he left NBC for CBS. (Again that old line, "While I can't define it exactly, I know it when I see it" ... )

The title of the book derives from the opening of the First Amendment, "Congress shall make no law ... abridging freedom of speech" and, in particular, Justice Hugo Black's absolutist interpretation of it. With this as the starting point, one enjoys an odyssey that revisits issues as what, exactly, constitute "speech" and so on. Such specifics as Cohen v. California are discussed even if only fleetingly, in the reliance by Justice Ginsburg upon it in a footnote, although the humorous charm and grace of the recap of that case by Professor Bork [1] was far more entertaining for the average non-lawyer reader.

Alas, the big opportunity missed was that of shedding light on the larger anthropological question of the progression of technology's effect upon us as a species. If Gutenberg's printing press made us all readers and if radio made us all listeners (television ... viewers, office copiers ... publishers, etc.) what will people 50 years from now say the internet made us (if, indeed, anyone will be a-Twitter about any such matters)? A wonderful romp near that terrain is enjoyed from reading the works of Thomas A. Stewart. [2]

The authors concede at the outset that a Black-like view of an "Absolute First Amendment" is unlikely in the near-term. As with all such speculation, this seems to be another proverbial cart being put ahead of the horse, or in the case of whatever competing interest(s) of potential litigants down the road, a solution in search of a problem.

Who knows which cases will gain "cert" months or years from now? In those, which points will be the most compelling in oral arguments and, even more important, of those which will resonate best when conference leads to vote and, ultimately, concurring (and dissenting) opinions?

But, as these words are being strung together, the announcement of David Souter's retirement is already causing severe salivation at all the usual left-leaning breeding grounds for lib'ral drivel. Simple speculation evolves into splendiferous speciousness?

Here, however unwittingly, the bottom line comes into the clearest focus in that predicting what thought(s) will come into one's head ten minutes from now, much less ten or twenty years hence, is all but impossible. Multiply that by nine (or five out of nine?) and one understands why, shortly after leaving the White House, Ike responded to the question of what his biggest mistake in office was, "That's easy. There were two and both still sit on the Supreme Court!"

Notes:

[1] Bork, Robert H., The Tempting of America: the Political Seduction of the Law (New York: Free Press; [London: Collier Macmillan], 1990) p. 248

[2] Stewart, Thomas A. Intellectual Capital: the New Wealth of Organizations (New York: Doubleday/Currency, 1997). See also The Wealth of Knowledge: Intellectual Capital and the Twenty-first Century Organization (New York: Doubleday/Currency, 2003)