As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true.
This unconstitutional double think can be prevented judicially. The developing misuse of copyright defense provides the court with the mechanism needed to avoid the problem. Consequently, this article begins by describing the copyright misuse defense. It then presents the constitutional framework of federal intellectual property law. Then, the fact that a simultaneous claim of copyright and trade secret protection constitutes a form of constitutional doublethink will be developed, thus leading to the conclusion that the misuse defense should be – indeed, constitutionally must be – expanded to prevent intellectual property owners from engaging in unconstitutional doublethink.
Ralph D. Clifford, Simultaneous Copyright and Trade Secret Claims: Can the Copyright Misuse Defense Prevent Constitutional Doublethink?, 104 Dick. L. Rev. 247 (2000).