A primer in modern intellectual property law

The role of law in modern society

The importance of law in modern societies is hard to overestimate. The systems are complex, the institutions arediverse and range from small to mammoth, and the number of people involved, from para-legal to federal judge, can only beproof of its central role in society. And yet, for the most part, law and legal issues are left to lawyers, legal theoristsand the occasional sociologist. For most people, the law is only reluctantly confronted during those signature events inlife: marriage, paying taxes, immigrating, or suing the buttwipe in the SUV who smashed up your right-hand rear-view mirror. Andso it should be.

Intellectual Property (IP) Law, however, seems to have broken this mold. For about twenty years, IP lawhas slowly become something more and more people confront. It is not only becoming easier to violate the law, due to changingtechnology, but it is also becoming much easier and more common for people to use the law to police their own intellectualproperty. In order to understand what this body of law consists of, where it came from, and what it's original justification andcurrent uses were and are, it's necessary to look more carefully at both the law, and the reasons for its existence.

The origin of american intellectual property law

Intellectual Property law stretches back at least to the 17th century, and depending on the definition, further. However, aswith many modern government institutions, it was given a special place in the American constitution. It is interesting to notethat the US constitution does not specify anywhere that humans have a right to tangible property such as land (though the 5thamendment guarantees that there shall be no government taking of property without just compensation), but it does insist that theCongress of the United States be given a special right concerning "Authors and Inventors":

To promote the Progress of Science and useful Arts, by securing forlimited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

The inclusion of this phrase in the constitution is by no means arbitrary. It was, like the rest ofthe constitution, extensivvely debated by the framers. Perhaps one of the most famous statements about intellectual propertycomes from Thomas Jefferson. Jefferson's 1813 letter to Isaac McPherson has been very widely quoted in the context of debatesabout the role of intellectual property. In it, he explains why he considers it unreasonable to consider ideas to be property.

It has been pretended by some, (and in England especially,) that inventors have a natural andexclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But whileit is a moot question whether the origin of any kind of property is derived from nature at all, it would be singularto admit a natural and even an hereditary right to inventors. It is agreed by those who have seriouslyconsidered the subject, that no individual has, of natural right, a separate property in an acre of land, forinstance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common,is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes withit. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then,if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive andstable property. If nature has made any one thing less susceptible than all others of exclusive property, it is theaction of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it tohimself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannotdispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every otherpossesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as hewho lights his taper at mine, receives light without darkening me. That ideas should freely spread from one toanother over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have beenpeculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, withoutlessening their density in any point, and like the air in which we breathe, move, and have our physical being,incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be asubject of property.

Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas whichmay produce utility, but this may or may not be done, according to the will and convenience of the society,without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, untilwecopied her, the only country on earth which ever, by ageneral law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in agreat case, and by a special and personal act, but, generally speaking, other nations have thought that thesemonopolies produce more embarrassment than advantage to society; and it may be observed that the nations whichrefuse monopolies of invention, are as fruitful as England in new and useful devices.

Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I knowwell the difficulty of drawing a line between the things which are worth to the public the embarrassment of anexclusive patent, and those which are not.