Vol 7 No 1 - Roger Williams University School of Law

existence of competing constitutional objectives, expressand implied, is undoubted. 173The message from this passage is that intellectual propertyrights are subject to constitutional limits; yet, can it be suggestedthat fundamental democratic principles such as public access toinformation might act to influence the ultimate shape of copyrightor information law?There is a deeper question concerning the social, as opposed toeconomic, aspect of innovation in this entire debate. It revolvesaround a fundamental (engineering) principle of diversity inknowledge creation or distributed intelligence that is the hallmarkof a democratic society. The notion of “diversity” stems from thecases of Associated Press v. United States174 and TurnerBroadcasting Systems Inc. v. FCC,175 where the United StatesSupreme Court explained: “The basic tenet of nationalcommunication policy is that the widest possible dissemination ofinformation from diverse and antagonistic sources is essential tothe welfare of the public.”176 This ethic also underpins the FirstAmendment.177 A fundamental engineering principle of socialand cultural communication pathways is that of diversity—monopoly of thought will not assist a pluralistic and tolerantsociety fuelled by distributed intelligence. For now the challengeby the First Amendment to the Copyright Act or the Patent Acthas yet to be fully realised. This is not to say the arguments willnever prosper. The assertion of free and open discursiveId.173. Id. at n.218.174. 326 U.S. 1, 20 (1944).175. 512 U.S. 622, 662-64 (1994).176. Id. at 663.177. See Whitney v. California, 274 U.S. 357, 375 (1927) (Brandeis, J., concurring).Those who won our independence believed that the final end of the State wasto make men free to develop their faculties; and that in its government thedeliberative forces should prevail over the arbitrary. They valued liberty bothas an end and as a means. They believed liberty to be the secret of happinessand courage to be the secret of liberty. They believed that freedom to think asyou will and to speak as you think are means indispensable to the discoveryand spread of political truth; that without free speech and assemblydiscussion would be futile; that with them, discussion affords ordinarilyadequate protection against the dissemination of noxious doctrine; that thegreatest menace to freedom is an inert people; that public discussion is apolitical duty; and that this should be a fundamental principle of theAmerican government.