In the canon of Legal Realism, there are two classic treatments of the subject of intellectual property. The first is Felix Cohen's brief but fierce attack, in the midst of his most famous article, on recent developments in trademark law. Cohen lamented the loss of what he saw as a sensible, functional orientation (in which trademarks were given legal protection only when necessary to prevent confusing customers) in favor of a newer, more generous posture, which treated trademarks as "property rights in divers economically valuable sale devices." Cohen's claim was not that the new approach was pernicious -- although he plainly had his doubts on that score -- but rather that its proponents had failed to articulate any social or economic justification for it. Instead they had "taken refuge in a vicious circle to which no obviously extra-legal facts can gain admittance."

The current legal arguments runs: One who by the ingenuity of his advertising or the quality of his product has induced consumer responsiveness to a particular name, symbol, form of packaging, etc., has thereby created a thing of value, a thing of value is property; the creator of property is entitled to protection against third parties who seek to deprive him of his property. ... The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected.

If you have a moment, read the full text of Cohen's argument. It will not take long, and you are likely to find it both amusing and compelling.

The second document is the famous Supreme Court opinion in International News Service v. Associated Press (1918). The facts of the case were straightforward but unusual:  International News Service (INS) and Associated Press (AP) were competing news services that employed correspondents to gather and report news worldwide. Local and regional newspapers would pay a fee to subscribe to either one or the other organization and would receive in return news bulletins for use in their own papers, thus enabling them to provide their readers broader and more timely coverage than they could have done on their own. Problems arose when French and British authorities during World War One excluded INS personnel from the front lines and barred them from using the European cable system -- apparently because INS had taken pro-German positions in its news coverage. Since news of the war was a hot commodity, this placed the INS papers at a serious competitive disadvantage. In response, INS began "lifting" AP’s stories from AP’s bulletin boards, and from early editions of AP-affiliated newspapers on the East Coast. An INS reporter would take the information from the story and write an article in his own words. The new article would then be wired to INS-affiliated papers on the West Coast for publication. Sometimes this resulted in INS "scooping" AP’s West-Coast affiliates, if the INS edition came out on the West Coast before the AP edition.

AP sued on three counts. The first two, alleging bribery by INS employees to persuade AP employees to release news before publication, quickly resulted in injunctions against INS. The third count, involving the "lifting" practices described above, was a more complex matter. While the District Court recognized that this was an unfair trade practice, there was nothing per se illegal about it. (AP had not sought copyright protection for its articles. Even if the articles had been copyrighted, INS would not have violated the federal copyright statute, because it did not "copy" the stories, but rather took unprotected facts from them and wrote new articles from those facts.) Therefore, the court refrained from granting an injunction pending appeal.

A divided Supreme Court found in favor of AP on this third count. Justice Pitney's opinion for the Court is a good example of Classical Legal Thought. You should read it to get a feel for that style of reasoning. By contrast, Justice Holmes' concurring opinon and Justice Brandeis' dissenting opinions are excellent early examples of Legal Realism.