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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« The Spread of Creative Commons | Main | Patent Reform Act of 2005 Introduced »

June 08, 2005

Janice Brown Appointed to DC Circuit Court of Appeals

Posted by Ernest Miller

Prof. Michael Madison notes the appointment of Janice Brown to the DC Circuit Court of Appeals bench (CNN: Senate Confirms Brown to Federal Judicial Post), and one of her opinions that copyfighters would be interested in (Janice Brown Confirmed). The case he cites is Intel v. Hamidi, in which Brown dissented from a majority ruling holding that Intel could not prevent a former employee from sending mass emails to current Intel employees. Her dissent shows quite the fondness for property metaphors:

Those who have contempt for grubby commerce and reverence for the rarified heights of intellectual discourse may applaud today's decision, but even the flow of ideas will be curtailed if the right to exclude is denied. As the Napster controversy revealed, creative individuals will be less inclined to develop intellectual property if they cannot limit the terms of its transmission. Similarly, if online newspapers cannot charge for access, they will be unable to pay the journalists and editorialists who generate ideas for public consumption.

This connection between the property right to objects and the property right to ideas and speech is not novel. James Madison observed, "a man's land, or merchandize, or money is called his property." (Madison, Property, Nat. Gazette (Mar. 27, 1792), reprinted in The Papers of James Madison (Rutland et al. edits., 1983) p. 266, quoted in McGinnis, The Once and Future Property- Based Vision of the First Amendment (1996) 63 U. Chi. L.Rev. 49, 65.) Likewise, "a man has a property in his opinions and the free communication of them." (Ibid.) Accordingly, "freedom of speech and property rights were seen simply as different aspects of an indivisible concept of liberty." (Id. at p. 63.)

The principles of both personal liberty and social utility should counsel us to usher the common law of property into the digital age.

Yeah, free speech is exactly like a property right. Sure.

Comments (1) + TrackBacks (0) | Category: Copyright | Freedom of Expression


1. Crosbie Fitch on June 9, 2005 05:30 AM writes...

Intellectual property is indeed first class property, can be treated precisely like physical property, and one can exclude people from it.

By not fricking publishing it!

If you release your IP to the world, you can't then expect to be able to control it.

If you have a bottle of champagne it's yours. If you pour it into the ocean, you can't then demand your control persists over each of the molecules that comprised it.

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