Ask Dr. Copyright

Dear Doc:

I’ve heard about how the Supreme Court has overturned Roe v. Wade, and declared a century-old state law saying that you need a valid reason to carry a loaded gun anywhere you please because the matters in those cases were not part of the way people thought in 1789 (or 1868, either.) How might this line of legal reasoning affect our intellectual property laws?

Signed,
Confused and Dazed

Dear C&D:

In Dobbs v. Jackson Women’s Health, the Supreme Court said that to be Constitutional, a right or regulation must be “rooted in the Nation’s history and tradition and … an essential component of ‘ordered liberty.’” The Court looked to history, including the 1644 writings of Sir Edward Coke, an English jurist, English laws in 1803, and our own state laws of the 1800s.

In New York State Rifle & Pistol Association v. Bruen, the Court chose to discount English laws restricting how arms could be carried dated 1285 and 1328, but gave great weight to the 1689 English Bill of Rights, guaranteeing that “Protestants . . . may have Arms for their Defence suitable to their Conditions, and as allowed by Law”. The Doc thinks that the Court would be quite satisfied for that to be the law in the US today, but he digresses.

In the realm of intellectual property, were the Court to look to the history and tradition, the first thing that might happen is that only printed things would be protected by copyright, since the 1710 English Statute of Anne is the literal precursor to our copyright laws. Goodbye protection for movies, photographs, sound recordings, software, and anything not printed on paper, since none of those things existed in 1789 when the Constitution was ratified.

In the field of trademarks…well, there would be no field of trademarks, at least not at the federal level, since the Lanham Act was only passed in 1946. Before that, we had state laws and common laws against passing off your goods as those of another. The Doc thinks that the confusion about what laws governed is just an inconvenience we would have to go back to.

As for patents, we need to look only to the Patent Act of 1790, which granted patents only to the “useful Arts,” which were the work of skilled workers and artisans, especially in the fields of engineering and manufacturing. Forget covering most of modern technology in fields like medicine, computer science (since the Founding Fathers never saw such a contraption), and many other “arts”. The Doc thinks that the Patent Office could then fire about 90% of the people who work there.

Philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.” The Doc agrees, but would add that those who ignore the present and govern only by repeating the past doom the rest of us to repeat the mistakes of that past. Human society advances, as do humans, by learning from the mistakes made. The Doc is afraid that by looking only to a past frozen in the late 18th Century, our Supreme Court majority is simply proving to the rest of us what Dickens famously quipped. “The law is an ass—an idiot.”

Have an invention or some other intellectual property? Need help to protect it? Give the attorneys at LW&H a shout. They enjoy helping out.

Until next month,

The “Doc”

— Lawrence A. Husick, Esq.

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