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By Root 1628 0

ask whether this inquiry has cast some doubt on the prior restraint doctrine itself—whether copyright law's tolerance of preliminary injunctions might be right, and the free speech doctrine's condemnation of such injunctions might be wrong. In Part IV, we discuss the implications of the collision between copyright law principles and free speech principles, and propose some changes that are needed to bring copyright law into line with constitutional commands. We conclude that permanent injunctions in copyright cases should generally be constitutional, and the same should go for preliminary injunctions in cases that clearly involve literal copying, with no plausible claim of fair use or of copying mere idea rather than expression. Other preliminary injunctions, though, should generally be unconstitutional.

In Part V, we briefly explore these questions with regard to other kinds of intellectual property—trademarks, rights of publicity, trade secrets, and patents. We conclude that the problem is not limited to copyright, and that at least in trademark and right of publicity cases, preliminary injunctions may sometimes run afoul of the First Amendment. Finally, in Part VI we say a bit about the practical prospects for revising the law along the lines we suggest.

IV. WRITING THE “BACKGROUND” SECTION

A. Focus on the Necessary Facts and Legal Rules

The section after the Introduction is sometimes called the “background” section. Unfortunately, this tends to lead some authors into throwing in as much background as possible, and it obscures what aspects of the background are most important.

As a result, too many student articles spend eighty percent of their time setting forth the “background” and twenty percent explaining and proving their claims. And doing this is tempting: Describing the existing law, facts, or history is easier than articulating and defending an original claim. Plus, when you've spent many weeks doing research, it's hard to cut down the result to just a few pages.

Yet the purpose of your article is to state and prove your claim. That's where the action is, and you should be excited and impatient about getting there. Your claim and your proof are what you're adding to the field of knowledge; your achievement will be measured largely by this value added. You can't prove your claim without explaining certain facts and legal doctrines, but do this as tersely as possible.

So instead, think of this section as the section that explains those items that are necessary to understanding the problem. For instance, if you're writing about how the law should treat nonlethal weapons (such as stun guns and pepper sprays), you need to explain those facts about nonlethal weapons that are necessary to understanding such regulations. For instance, you should note what kinds of injuries these devices can inflict, how many times they can be used before reloading, in what circumstances they don't work well, and the like.

Do not explain the history of stun guns, except to the extent that it's necessary to understanding the regulatory regime. Do not explain the chemistry of pepper sprays. These are detours that will take the reader away from the heart of your article: how the law should treat nonlethal weapons.

Likewise, if you're writing about the First Amendment and restrictions on parent-child speech in child custody cases, you'll need to briefly explain the basic definitions, such as the differences between legal custody and physical custody, and between custody and visitation. You'll also need to briefly explain the family law rules that you're analyzing. You might also briefly summarize the First Amendment rules, though you might want to save that for the substantive analysis section, where you can introduce the rules as you apply them.

But don't write a mini-treatise on the law. Don't even describe all the law and all the facts that you'll later use. All you must do in this section is give the reader the legal and factual framework necessary to generally understanding what follows. You'll have plenty of time to