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

Authors: David L. Lange and H. Jefferson Powell

Publication Year: 2009

Summary of Key Points and Actions

Key Point:
The authors argue for a heightened status of the First Amendment in the landscape of intellectual property (IP) law, suggesting that current IP laws too often overshadow free speech rights.

Action:
When advocating for changes in IP legislation, emphasize the primacy of the First Amendment, positioning free expression as a non-negotiable foundation of discourse and creativity.

Key Point:
Lange and Powell provide an extensive historical context of both IP law and the First Amendment, illustrating how the two have evolved both independently and in interaction with each other.

Example:
They trace the origins of copyright law to the Statute of Anne in 1710 and patent law to the Venetian Statute of 1474, juxtaposing these with seminal First Amendment cases like Schenck v. United States (1919).

Action:
In legal arguments or academic research, utilize historical examples to demonstrate how IP law has evolved, supporting calls for reforms that prioritize free speech considerations.

Key Point:
The book delineates the inherent conflict between IP rights, which aim to protect creators’ assets, and the First Amendment’s guarantee of free speech and expression.

Example:
Citing cases such as Eldred v. Ashcroft (2003), the book underscores moments where the Supreme Court has weighed in on this tension, often siding with IP protections.

Action:
Advocate for policies that ensure IP protections do not unjustly curtail freedom of expression, proposing balanced legislation that serves both interests.

Key Point:
An “absolute” First Amendment, as proposed by the authors, is one where speech is given utmost protection, requiring a more flexible, less restrictive approach to IP law.

Example:
The authors draw from Justice Hugo Black’s opinions, notably his dissent in Kovacs v. Cooper (1949), where he argued for very limited restrictions on speech.

Action:
When supporting legislative changes or engaging in legal practice, argue for less stringent IP laws that do not infringe upon the fundamental right to free speech, often citing Justice Black’s philosophies.

Key Point:
Lange and Powell critically analyze existing IP statutes, pointing out how they often disproportionately benefit corporations and stifle individual expression and innovation.

Example:
They discuss restrictive digital rights management (DRM) practices that limit how content can be used, citing examples from the music and software industries.

Action:
Campaign against overly restrictive DRM and similar IP practices, advocating for more user-friendly and permissive use terms that respect free speech.

Key Point:
The authors propose reforming IP law to better align it with First Amendment values, suggesting frameworks that prioritize dissemination and use over restrictive ownership.

Example:
One proposal includes limiting the duration of copyrights significantly more than current laws, reverting closer to nearly the original terms proposed in the Statute of Anne.

Action:
In writing or policy proposals, support reforms that shorten copyright terms and reduce barriers to entry for using and disseminating creative works.

Key Point:
Lange and Powell argue that while protecting creators’ financial interests is important, it should not come at the expense of public access to information and cultural exchange.

Example:
They critique the extension of copyright terms influenced by corporate lobbying, such as the Sonny Bono Copyright Term Extension Act (1998), also known as the “Mickey Mouse Protection Act.”

Action:
Support and propose legislation that more carefully scrutinizes the influence of corporate lobbying on IP law, insisting on measures that prioritize public interest and free speech.

Key Point:
The book includes a variety of case studies illustrating the clash between IP protections and free speech, underscoring the need for a more speech-friendly IP regime.

Example:
The case of Campbell v. Acuff-Rose Music, Inc. (1994) is highlighted, where the Supreme Court upheld the importance of parody as a protected form of speech under the fair use doctrine.

Action:
Use significant legal precedents in advocacy to illustrate the benefits of reinforcing free speech within IP law, promoting doctrines like fair use that protect transformative works.

Key Point:
For individual creators and users, understanding the balance between IP rights and free speech is crucial for both protecting their work and ensuring their ability to build upon existing cultural material.

Example:
They discuss how fan fiction and other derivative works often operate in legal gray areas, sometimes facing takedown notices despite offering substantial creative contributions.

Action:
Educate creators and users on their rights under current IP laws, providing guidance on how to navigate legal challenges while advocating for more protective free speech measures.

Key Point:
The authors make several policy recommendations, including revising the standards for what constitutes fair use and ensuring public policies enhance rather than restrict public access to information.

Example:
Proposals include expanding exemptions for educational and non-commercial uses of copyrighted material, facilitating wider access to cultural and educational resources.

Action:
Push for legislative changes that expand fair use exceptions and lobby for policies that promote the free distribution of educational materials.

Key Point:
The book closes with recommendations for future research and potential directions for both the legal community and policymakers to explore further.

Action:
Engage with academic and legislative bodies to support ongoing research into the balance between IP law and the First Amendment, ensuring sustained dialogue and policy development.

Conclusion:
“No Law: Intellectual Property in the Image of an Absolute First Amendment” offers a compelling argument for rethinking IP law through the lens of the First Amendment. The authors’ call for prioritizing free speech provides a critical framework for reforms that seek to balance individual creators’ rights with broader public access and expression. By adopting the concrete actions suggested, legislators, lawyers, educators, and creators can work towards a more equitable and speech-friendly IP regime.