Counterplan solves better, competes, and establishes federal common law incrementalism in intellectual property---that’s fundamentally distinct from the AFF’s statutory policy, and tailors the law case-by-case.

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property’s precise content and coverage.1 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one’s image, and other related intangibles. These rights regimes are in turn collectively referred to as “common law intellectual property.”2 Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off.

While each of these regimes covers a distinct intangible, they all share the same structural characteristics.3 Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as “antifoundational.” Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development “pragmatic incrementalism,” in that it exhibits the characteristics of both legal pragmatism and common law incrementalism.

Several of these common law regimes are almost as old as their statutory counterparts, if not older.4 Yet, for decades now, many have voiced their skepticism about the usefulness of these rights, especially in light of congressional activity in the area.5 Justice Louis Brandeis and Judge Learned Hand, both outspoken champions of the common law in other contexts, were well-known skeptics of common law intellectual property.6 They feared that allowing courts to create and develop intellectual property rights would result in the overprotection of information, thereby impeding free speech and allied interests. More recently, Douglas Baird has argued that, while common law intellectual property has done little to impede the free flow of information, its deep flaw nonetheless lies in having courts choose among competing analogies to develop the law.7 Since each analogy emphasizes a different value, Baird argues that courts are hardpressed to choose effectively among them.

On closer examination, however, these objections are myopic. In focusing entirely on the issue of judicial competence, they disregard the structural and substantive advantages that accompany common law rulemaking in intellectual property, all of which are borne out by the continuing vitality of these regimes. The method of pragmatic incrementalism that courts have come to employ emphasizes a cautionary, context-sensitive approach to intellectual property development. The extensive situational tailoring and modification that this incrementalism brings about adequately safeguards the process against the possibility of overprotection. Besides, recent developments in the federal arena have also cast serious doubt on claims of legislatures’ superior competence in intellectual property lawmaking. In particular, the federal copyright and patent systems are in a state of crisis. Congress has repeatedly extended the term and coverage of copyright protection, often bereft of any reason other than pure industry rent seeking, prompting calls for radical reform.8 So too, the patent system seems to be stifling rather than stimulating innovation in a variety of different areas.9 Unsurprisingly, scholars have begun calling for fundamental changes to the patent system as well.10 Despite all of this, reform efforts have met with little success as a consequence of the interest group gridlock that is endemic to most congressional efforts. Few, if any, have turned to courts and the common law for solutions in recent times.11

Baird’s concern that courts are hard-pressed to choose between different analogies also underappreciates the significance of antifoundational decisionmaking, a core feature of pragmatic incrementalism. Rather than relying on a single foundational theory for the regime, the process requires courts to balance several competing values as they relate to a particular context. In other words, the very selection of an “appropriate” analogy from among several options forces courts to confront and recognize as legitimate a multiplicity of goals and interests for the institution12—a strong virtue of analogical reasoning in the law.13

What exactly is intellectual property law trying to achieve? For decades now, courts, scholars, and legislators have struggled to articulate a coherent theory of intellectual property.14 These theoriesprincipally normative in orientationpropose a unifying principle for a regime and then explicate that principle in different parts of the law. They prize consistency and coherence across time and context. In the process though, they either classify deviations as anomalies or creatively reinterpret them as being driven indirectly by the same unifying principle. The diversity of scholarship that follows this pattern captures the pervasiveness of this phenomenon. To law and economics scholars, such as William Landes and Richard Posner, the entire field of intellectual property law is driven by a core concern for promoting economic efficiency, minimizing transaction costs, and providing creators with an incentive to create.15 To libertarians, such as Richard Epstein, intellectual property law is in the end about “property” and therefore imbued with classical liberal values.16 Others have made similar claims about specific types of intellectual property. Jane Ginsburg, for instance, has long argued that copyright law is about “authorship” and the centrality of authorial control over creative works.17 In a similar vein, Roberta Kwall has argued that copyright law should be understood as a mechanism to protect the intrinsic dimension of creativity—the morality of authorship.18 Regardless of ideology, the search for a grand theory continues to dominate the intellectual property landscape.19

Normative coherence, however, does not require a single overarching value, or indeed even a finite set of values. It can at once acknowledge the incommensurability of the various values involved and strive to accommodate them institutionally. For centuries now, the common law method has done just this, enabling it to accommodate and affirm a host of otherwise conflicting values through a process of practical reasoning. And indeed common law intellectual property regimes build on this basic feature of the common law, an attribute that its detractors ignore.