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No LawIntellectual Property in the Image of an Absolute First Amendment$
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David L. Lange and H. Jefferson Powell

Print publication date: 2008

Print ISBN-13: 9780804745789

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804745789.001.0001

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Intellectual Productivity and Freedom of Expression: The Conditions of Their Coexistence

Intellectual Productivity and Freedom of Expression: The Conditions of Their Coexistence

(p.168) Chapter 6 Intellectual Productivity and Freedom of Expression: The Conditions of Their Coexistence
No Law
Stanford University Press

This chapter identifies the terms upon which creative productivity and freedom of expression can coexist. The discussion presents these conditions as if the essential presupposition—a sacrifice of exclusivity in favor of an absolute right of appropriation—is itself a matter to be newly weighed in the balance. This is consistent with the Court's interpretation of the First Amendment to date. The chapter proposes an interpretation of the First Amendment that leaves no room for drawing such a balance. The approach takes the right to appropriate not as a matter for election, but rather as an inevitable consequence of a better understanding of the amendment than provided by Holmes and the Court. Intellectual productivity can continue to have its incentives, while expressive appropriation will be unburdened by the idea of property. But this equivalence will be the result of a new legislative response to a new constitutional reality, one in which intellectual property will be refashioned in the image of an absolute First Amendment.

Keywords:   creative productivity, freedom of expression, exclusivity, appropriation, First Amendment, intellectual property

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