First ideas

This Article locates the roots of “first” as a basis to allocate rights in traditional property law. It then sets out four values that a rule of first possession can be seen to promote when it is transplanted to intellectual property: fairness, order, societal benefits, and rhetorical power.

This Article’s thick description of how this principle of first possession actually operates in patent, copyright, and trademark laws lays bare that the idea of “first” has been mutated and contorted substantially. This Article shows how patent, copyright, and trademark laws’ mutations and contortions of “first” are systematic. For one thing, they deviate from actual first possession when they treat someone as a firstcomer for things they have not actually done, through two mechanisms that I term to be “constructive firsts” and “fictional firsts.” These laws also diverge from actual first possession when they consider latercomers as if they were firstcomers, through three mechanisms that I term to be “erased firsts,” “excused firsts,” and “leapfrogging firsts.” This description and analysis show that the idea of “first,” something we reflexively believe to be objective and straightforward, is instead—at least in the context of intellectual property and due to its mutations and contortions—normative and thorny. An overly simplistic understanding of “first” also obscures that the law must make complicated determinations as to which actions—or verbs—qualify someone as a first possessor at all. This Article explores what optimal rules of allocation look like in intellectual property. It suggests that the purported values of “first”—fairness, order, societal benefits, and rhetorical value—are in fact undermined to some degree by the mutations and contortions of “first” in intellectual property. Indeed, rules awarding rights to those who create later or better might instead sometimes better promote these same four values, especially because sometimes awarding rights to those who create first might contravene these values.