Saturday, November 05, 2016

Does the First Amendment limit the power of Congress as to Intellectual Property?

The concurring opinion of Judge Mayer in the Intellectual Ventures case, bringing up First Amendment issues in IP law, has drawn some attention. JD Supra wrote:

Putting eligibility issues aside for a moment, Judge Mayer wrote that "patents constricting the essential channels of online communication run afoul of the First Amendment." In his view, "[p]atents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse."

Citing the '610 patent as particularly pernicious in this regard, Judge Mayer was concerned that its claims "could reasonably be read to cover most methods of screening for harmful content while data is being transmitted over a network." Notably, he concluded that "[e]ssential First Amendment freedoms are abridged when the Patent and Trademark Office ("PTO") is permitted to balkanize the Internet, granting patent owners the right to exact heavy taxes on widely-used conduits for online expression."


It is worthwhile mentioning another case that involved the relation between the First Amendment and IP law: Golan v. Holder.
The district court judge had written: In the United States, that body of law includes the bedrock principle that works in the public domain remain in the public domain. Removing works from the public domain violated Plaintiffs’ vested First Amendment interests

The Supreme Court decision had the effect, among other things, of taking the 1927 movie of Fritz Lang ("Metropolis") out of the public domain. [The original series Star Trek episode "The Cloud Minders" bears some resemblance to Metropolis.]

See also:
David L. Lange et al., Golan v. Holder: Copyright in the Image of the First Amendment, 11 John Marshall Review of Intellectual Property 83-132 (2011)

Gordon, Wendy J., Dissemination Must Serve Authors: How the U.S. Supreme Court Erred (August 3, 2013). Review of Economic Research on Copyright Issues, 2013, 10(1), 1-19; Boston Univ. School of Law, Public Law Research Paper No. 13-33; Boston Univ. School of Law, Law and Economics Research Paper No. 13-33. Available at SSRN:


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