12 December 2005

A Sticky, Tangled Web

First-year law students get confronted with the "seamless web" theory of law about four or five weeks before the end of the first semester. This theory holds that there is a generic construct called "legal reasoning" that holds across all aspects of law; understanding the inscrutable contracts case may make a huge difference to passing the crim law final. Particularly in an era of increasing lawyer specialization, I think this comparison inapt. It's not that there is no relationship among different aspects of law; instead, the web is tangled, sticky, and full of both seams and holes.

Intellectual property law is an excellent example of how different legal theories have both strange influences and strange contradictions. Of late, the relationship between antitrust and intellectual property (or, in a broader sense, "entertainment") law has become rather noteworthy. In England, we have the objections to bookstore-chain mergers; in this country, we've been worrying about the relationship between printers and ink. Then there are less-obvious antitrust concerns, such as big-media music licensing (not to mention censorship, but that's for another time) and distributor consolidation.

So, if you're a law student interested in practicing intellectual property or entertainment law, make sure you take antitrust law. After all, the IP Clause says you'll be dealing with monopolies, albeit monopolies with constitutional sanction:

The Congress shall have power… to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries

Art. I, § 8, cl. 8 (capitalization modernized). Of course, an "exclusive right" in creative works is hardly a new thing; the Stationers' Company in England had an exclusive right, as did its continental counterparts. The difference is that our constitutional authorization gives that right to the actual creators, not to an intermediary (although, at least in the case of copyright, Congress has chosen to define "black" as "white" for WFH). And while you're studying for exams in one subject, don't forget the other one. Make sure you understand the limits of patents when considering International Salt, and conversely that you understand the limits of antitrust when considering Nation Enterprises.

Of course, I'd be a lot happier if lawyers in practice would make the same efforts…