Reviewed by Debora Halbert, Department of Political Science, University of Hawai`i at Manoa. Email: halberd [at] hawaii.edu.
David L. Lange’s and H. Jefferson Powell’s book, NO LAW, addresses the intersection of intellectual property law and the First Amendment. NO LAW is not the first argument regarding the possibility of a conflict between the First Amendment and intellectual property. However, it offers something other books do not – a thorough rethinking of the First Amendment as an absolute prohibition against government interference in areas of expression. Given the implications for the First Amendment of a government-sanctioned monopoly over expression, the argument made in this book is long overdue.
The book is divided into five parts; the first two parts focus on intellectual property, the second two, on the First Amendment, and the final part addresses possible concerns raised about the argument. Chapters One and Two offer the obligatory review of intellectual property law as it is grounded in court decisions and the legal literature. The primary trope used in the initial chapters is to couch intellectual property within a framework of exclusivity versus appropriation. Chapter Two does a good job of providing a comparative analysis of copyright and patent law using the exclusivity versus appropriation framework.
Chapter Three offers a thorough examination of the exclusivity of intellectual property with a specific focus on copyright. Especially well done are the sections on fair use, the concept of originality as understood within copyright law, and the way copyright hinders free expression. I especially liked the notion that originality should not be privileged over expression. Expression often includes imitation and appropriation (p.98), and there is no reason that a First Amendment reading would protect only “original” expressions. The chapter also argues that doctrinal exceptions, like fair use, are not sufficient to protect new expressive works. By Chapter Three the argument becomes centered on copyright law and the other forms of intellectual property introduced in the first few chapters are not fully explored or included in the First Amendment analysis. The case for copyright is very clearly made, but cases for other forms of rights are ancillary at best.
Chapter Four sets out the authors’ argument regarding the First Amendment as an absolute bar against government action. Lange and Powell introduce former Supreme Court Justice Black’s absolutist approach and contend that copyright violates the First Amendment. The argument here is well written, insightful and thought [*602] provoking. The chapter itself does quite a bit – from dissecting the poorly made arguments regarding the First Amendment in the ELDRED decision (pp.116-122), to providing a literature review of law professors working on the issue over the years (pp.138-142).
The second part, which includes Chapters Five and Six, transitions between the copyright section and the First Amendment section. Lange and Powell argue that copyright should be limited by First Amendment concerns and that action must be taken legislatively rather than judicially. They recognize that a First Amendment centered law will not be popular with current monopolists. However, we need an understanding of expressive ideas that is sufficiently public – meaning that once an idea becomes public, it is available for sharing, and exclusive rights must be limited.
The third part of the book outlines the history of the First Amendment. Chapters Seven and Eight provide a historical account of the First Amendment and conclude that it did not have a prescribed and definite meaning to the framers, but was subject to interpretation. Chapters Nine and Ten follow the constitutional jurisprudence of Holmes (a balancing approach) and Black (an absolutist approach) to clarify how our interpretation of the First Amendment has changed over time. The authors reject the Holmesian approach and revive a version of Black’s absolutist paradigm, which, they argue, would have been constitutionally viable from the perspective of the framers. Unlike Black, however, Lange and Powell want to create a structural analysis of the First Amendment instead of seeing it as protecting individual civil liberties.
Chapter Eleven develops a structural interpretation of the First Amendment that requires an absolute ban on government action. In response to the argument that it is impossible to impose absolute limits on Congressional power, the authors point out that the Court has accepted absolute limits in their interpretation of the 11th Amendment. This chapter suggests that we need to rethink the First Amendment in the face of a new crisis brought on by intellectual property rights, and that it is consistent with the framers’ intent to rethink the First Amendment along the lines the authors suggest.
Chapter Twelve completes the first amendment analysis by revisiting Blackstone’s views regarding government monopolies. It turns out that Blackstone sought to ban government-sanctioned monopolies over expression. The implications for modern intellectual property rules – government enforced monopolies over expression – should be obvious.
As a whole, the logic of part three is compelling. The authors supply a way of thinking about the First Amendment that is not directed at balancing individual liberty and government interests, but instead argues that a more structural reading of the First Amendment was actually what the framers had in mind. This section is a bit disjointed, however, compared to the first two sections. The connection to intellectual property is never longer than a sentence or two at the end of each chapter. However, they conclude the third section, applying their framework to “[t]hink the supposedly [*603] unthinkable: the First Amendment to the Constitution of the United States forbids the American government, in any of its parts including the courts, to undertake in any fashion to create or maintain a monopoly over expression” (p.301). At this point, the writing should be on the wall for copyright law – it is, after all, a government sanctioned monopoly over expression.
The final chapter summarizes the book’s central themes. As the authors note, “with the benefit of two hundred years of accumulated wisdom, that exclusive intellectual property regimes in expression qua expression cannot be squared with the vision of the First Amendment we have presented here” (pp.311-312). Lange and Powell ask us to employ an interpretation of the first amendment that respects the literal wording of the text – that the phrase, “Congress shall make no law,” actually means “no law” in an absolute sense. Not only do they take on the substantive task of offering an alternative to contemporary First Amendment analysis, they also argue that intellectual property is inherently at odds with the First Amendment. The question is, what do we do about it?
While offering a compelling argument for why intellectual property is at odds with the First Amendment and that Congress should not construct intellectual property laws that create a government sanctioned monopoly over expression, the authors shy away from the logical conclusion – that copyright law is unconstitutional. In fact, they say, such a claim made by David Nimmer years ago in one of the first treatments of copyright and the First Amendment goes “too far” (p.137). However, the notion that an absolute interpretation of the First Amendment means Congress can make “no law,” combined with the clear analysis suggesting that intellectual property laws are exactly the kinds of laws Congress should not be able to make, seems to suggest the unconstitutionality of copyright law itself.
Such a conundrum leaves me wondering why the authors refuse to take the final step. They posit that, “intellectual property as we know it could be abandoned altogether without permanent damage to the economy, and without serious harm to our culture” (pp.142-143), so it cannot be that they see copyright doing what its advocates suggest – incentivizing creation. The fine line they seek to create is that copyright cannot be an exclusive right. As they note,
What is forbidden by the First Amendment is exclusivity of the sort that arises, for example, when copyright, acting on behalf of a proprietor, opposes appropriation of an original work by others for the purposes of further expression, or when it conditions such an appropriation upon the payment of rents in excess of profits accruing from such an appropriation. In either case copyright abridges freedom of expression. Against this understanding of “exclusive rights,” we think (as we imagine both Jefferson and Black might have thought) that much of the present copyright act is otherwise unobjectionable, or at least unobjectionable from the perspective of the First Amendment (p.138).Thus, their argument becomes a bit bifurcated. On the one hand, the bulk of the book has proven that, at the very least, copyright law is at odds with their reading of the First Amendment. On the other hand, they conclude that, “it is possible to imagine the conditions for coexistence between the intellectual [*604] property doctrines and an absolute First Amendment” (p.146). The question is why bother to craft a First Amendment interpretation that absolutely prohibits Congress from making laws controlling expression, arguing that copyright is such a law, but then pull back from the final blow and claim instead that the law under this new analysis will, “retain (or can retain) their present shape to a remarkable degree” (p.306).
The book is more consistent in its argumentation than the previous paragraph suggests, but the vacillation does cause some confusion. The concluding chapter offers a fairly radical rewriting of copyright law that eliminates the possibility of exclusive ownership once an expression has left the privacy of one’s mind or home and entered the public. Thus, for Lange and Powell, there can be no prohibition on how others use ideas and expressions that have entered “the universe of discourses” (p.307). Not only would non-commercial appropriation and use of expressions be perfectly acceptable under a First Amendment conscious copyright law, but commercial appropriation that competed with the original would also be allowed because “interests in expression will no longer be consigned exclusively to proprietors recognized by the state” (p.307). If the authors advocate such a position, then it is not clear how copyright retains its present shape. Instead, it would appear that the authors have gutted copyright law. They are not opposed to incentives to create, just not incentives in the form of government granted monopolies. Thus, systems of digital rights management or “virtual venues” (pp.314-315) are perfectly appropriate mechanisms for protecting works.
Overall, I strongly recommend the book. It was a complex and intellectually stimulating read. It clearly describes the field of intellectual property today, though the book is really about copyright law and the argument for how the First Amendment interacts with copyright doctrine. The links between patent or trademark law and the First Amendment are never consistently made. NO LAW also develops the First Amendment analysis in a very insightful manner. The book should be required reading for anyone interested in the area of copyright law and would find a home in any course focused on constitutional law, intellectual property or public policy.
One last comment seems necessary. The authors by remaining theoretical in their approach are able to sidestep the politics of their proposals. While they acknowledge that content owners will not like the change in the law, they steer clear of the inevitable hysterical reaction that would result should Congress even hint at endorsing their perspective. I would not normally demand an action plan from a book making a theoretical argument, but given the powerful forces supporting the current monopoly system, that the system is out of control and badly in need of change, and that this book is perhaps one of the most subtly radical ones to be written in quite some time, I really hope a plan to make this transformation possible exists. In other words, how do we make NO LAW the law? If such a plan exists, sign me up.
ELDRED v. ASHCROFT, 537 U.S. 186 (2003).
© Copyright 2009 by the author, Debora Halbert.