Document Type

Article

Publication Title

William & Mary Law Review

Abstract

The friction between information as a common resource and information as a privately controlled good is a modern legal conflict, but it has roots deep in three centuries of legal history. This Article represents an attempt to understand the reasons for the discontinuities between the two approaches to speech and to indicate, in a preliminary way, some principles that might help to find a path out of the existing thicket. It begins by exploring the evolution of the assumptions and values that presently inform the property and speech categories. The reason for this look backward is that the attitudes and assumptions of past judges and scholars continue to be largely responsible for the terms in which the contemporary conflict is framed. Much of the latitude for the expansive development on the property side of the equation is directly attributable to the early and quite consistently maintained intellectual partition between consideration of speech values and property values. The result was that the interplay between the categories was barely recognized, much less reconciled. The Article then examines the impact of this tradition in the current century and, drawing in particular on privacy and right to publicity cases, shows how the theories about intellectual property that developed in the eighteenth and nineteenth centuries contributed to the proliferation of property rights affecting speech. Finally, the Article attempts at least some tentative suggestions for ways to rationalize the analysis of the area of overlap between the categories

First Page

665

Volume

33

Publication Date

1992

Download

Share

COinS