What would Aristotle do? Source: DEA Picture Library/De Agostini via Getty Images

When Can You Steal an Idea?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Aristotle said that when a general law doesn't fit a particular case, the proper course is to rectify the law so it does fit. Today, in the last oral argument of this term, the U.S. Supreme Court grappled with his advice in the case of Limelight Networks v. Akamai Technologies.

To see how one of the most ancient and profound insights into the nature of law is alive and well in the age of the Internet, you have to know something about remote storage technology and something about the patent law. Lucky for you and me -- and even luckier for the justices of the Supreme Court -- you don't need to know too much about either.

Akamai holds a patent on a process for remotely storing graphics-intensive images on servers close to the end-user, to speed up downloading time. Limelight has, essentially, ripped off that process -- but not by replicating it in its entirety. Instead, Limelight's technology replicates some parts of Akamai's patented process, while the user of Limelight's service replicates other parts of the process. Neither Limelight nor the user, then, directly infringes on Akamai's patent: Each is doing only a partial replication.

Have the patent laws anticipated this problem? Sort of. The Patent Act says that you're liable for infringing on a patent not only directly, but also if you've "actively induced infringement."

But is Limelight inducing "infringement" when it replicates part of the process itself and encourages the user to do the rest? That depends, of course, on the definition of "infringement." According to a literal interpretation of the Patent Act, the answer would have to be no. "Infringement" means replicating the whole process. On this literal reading, Limelight isn't inducing the user to replicate the whole process -- just part of it. Nor is Limelight itself directly replicating the whole process. The two halves, in other words, do not add up to a whole act of infringement.

At this point, you might be grumbling that this kind of reasoning is what gives lawyers a bad name. Aristotle might have agreed. The law as drafted was intended to cover the vast majority of cases, and it's inevitable, he believed, that some particular case might arise that doesn't fit the law as written. That's why he advised rectifying the law by acting as the original authors or legislators would have done had they been present.

But here's where the distinct problem of the U.S. constitutional system kicks in. Who, exactly, has the authority to rectify a statute that by its language seems not to cover the particular case? One answer is that only Congress has that power. The courts -- even the Supreme Court -- have the power to interpret statutes. But in the U.S., the courts lack the power to fix them.

The court, according to this view, must interpret the statute as written, resulting in a victory for Limelight. This is the approach taken in the case by the Office of the Solicitor General, which filed a friend of the court brief in support of Limelight. It is also very likely to be the view of Justice Antonin Scalia, who for decades has advocated and (mostly) practiced what he calls a "textualist" statutory interpretation. In his catchy phrase, the rule of law is a law of rules. When you bend the rules of interpretation, you break the rule of law.

A second, alternative answer focuses on the court's power of interpretation. According to this view, the court can interpret the law in light of the law's purpose. The Patent Act has the purpose of promoting innovation by protecting patent holders against infringement. Interpreting the word "infringement" to cover cases where there is both partial infringement and partial inducement to infringe would seem to serve this purpose. The result would be a judgment for Akamai against Limelight.

The U.S. Court of Appeals for the Federal Circuit, which specializes in patent litigation, reached just this conclusion. It's likely to be favored by justices, including the pragmatic Stephen Breyer, who believe (broadly speaking) that the purpose of law is to produce results that work well and in accordance with rational policy. Supporters of this view would also add that Congress isn't always good at fixing laws that it drafted too broadly or narrowly. To them, it seems perfectly reasonable that judges should play a role in making the system work.

The form of the debate is distinctively American. We like the law as written, and we like things that work. But the conflict is inherent in the structure of law itself, which is why it will be as fresh in another couple thousand years as it was in Athens.

The Supreme Court will resolve Limelight v. Akamai one way or the other -- but it won't resolve the tension between law and equity. No shame in that.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Frank Wilkinson at fwilkinson1@bloomberg.net