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COMMON LAW PROTECTION FOR PRODUCTS OF THE MIND:
AN "IDEA" WHOSE TIME HAS COME
by Arthur R. Miller [ Full Text ] |
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119 Harv. L. Rev. 703 (2006) |
The law of ideas — an uneven patchwork of principles governing the fortunes of an individual whose idea proves profitable in someone else’s hands — has fallen victim to scholarly, and perhaps judicial, complacency. Not only has the law long offered inadequate protection for idea-creators, but its meandering development has produced a legal landscape riddled with inconsistency. Much of the doctrine’s inadequacy stems from a judicially created threshold demand that the plaintiff demonstrate the submitted idea’s concreteness and novelty — a barrier that typically proves impenetrable. This Article argues that these threshold requirements are motivated by two deeper concerns that induce courts to dismiss plaintiffs’ claims: a fear of conferring a monopoly in ideas and a desire to circumvent evidentiary and administrative difficulties. It then offers a new functional mode of analysis that promises to bring a much-needed measure of fairness and consistency to the law of ideas, one that more directly and effectively addresses the principal judicial concerns. Under this functional analysis, several traditional causes of action would survive preemption under the Constitution and federal statutes, including in particular the preemption provision of the 1976 Copyright Act, because those causes would be properly limited and could coexist with federal interests.
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Replies in the Harvard Law Review Forum |
"An Idea Whose Time Has Come" — But Where Will It Go?
by Jane C. Ginsburg |
Promises! Promises!
by David Nimmer
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