ack9...@yahoo.com (') wrote in message news:<3d41c49c$0$4732$4c41...@reader0.ash.ops.us.uu.net>...
> I am deeply troubled by the current direction of intellectual property
> law, and I am looking for some debate by people in the know. (Wag:
> so what are you doing on Usenet?)
> I have written some first reactions that I would like to post to start
> debate. In fact I am not totally committed to a particular position
> but my writing became something of a polemic. Think of it as
> deliberate provocation.
> If some other newsgroup is more appropriate please feel free to post
> this there.
> if windows were a car, it would be illegal to take it apart.
> if books were software, public libraries would be illegal.
> strictly speaking, it is illegal for you to tell a friend who won an
> NFL game.
> intellectual property is multibillion dollar corporations charging you
> money for every conceivable benefit, anywhere, anytime.
> intellectual property applies concepts derived from the physical world
> to the world of information, a world that functions quite differently.
> technology was supposed to give power to the people. printing presses
> represented the power of speech, so the old communist regimes made
> sure they owned all the printing presses. the modern fight over ip is
> nothing less than the capitalist powers asserting ownership of all
> media, all the ways of distributing any information that might be
> valuable to you.
> we are a rich nation on a rich planet. capitalism brought us this
> far, vanquishing all rivals. but intellectual property is capitalism
> run amuck, and I fear for our future if it triumphs. we will become a
> society of eloi and morlocks, where the eloi are entertained and kept
> happy, but in the end the morlocks eat them.
> imagine what would happen if the first car companies had patented how
> their cars were driven. imagine paying a fee to drive on the right
> side of the road. imagine if mercedez-benz had not freely shared
> their research into safety technology.
> any relationship becomes exploitative when the balance of power tips
> too far. the players of the ip game have global powers and are
> reaching for more at the expense of the individual consumer.
> ip is like electricity, it is like blood, it is necessary for the
> functioning of modern life. no one party should be allowed to own or
> monopolize it. ip needs to be regulated like a public utility (used
> to be) because the alternative is market manipulation and resource
> hoarding that benefits the few at the expense of the many.
Patent law and copyright law both derive from a clause in Article I, Section 8
that gives Congress the power to grant "exclusive Rights" for "limited Times"
to "promote the progress of the Arts and Sciences".
If you read Supreme Court rulings and Thomas Jefferson's writings, it is very
clear that copyrights and patents are not recognition of any sort of natural
property rights in ideas (subject of patents) and expressions (subject of
copyrights). (The very copyability that content holders cite as the reason for
demanding ever-more-draconian "protections" is what Jefferson cites as the
reason why these things cannot be property!)
Instead, copyrights and patents are incentives to get authors and inventors to
produce new ideas and works, that may be useful, for the benefit of the public.
Think of it as an imperfect solution to the "tragedy of the commons" problem -
widespread dissemination and sharing of ideas and works is beneficial, but the
creation (and in some cases maintenance) of these things requires expenditure
of naturally scarce resources.
Allow unlimited copying from Day 1, the market may bypass providing any ROI
to the creator ("unnecessary cost"). Allow unlimited monopoly, and the public
does not get the benefit of its investment, or the NON-scarce nature of copies.
Imagine if the wheel and the axle were still patented (with heirs that were at
odds with each other), or if Shakespeare's plays were still copyrighted, or if
single publisher could withhold the King James Version of the Bible.
Allow strictly limited monopolies, tailored to serve PUBLIC ends, and you may
be able to provide the profit incentive to develop new ideas and works without
the Government directly deciding "Inventor A gets $B, Writer C gets $D, ..."
monopoly rent collected during the limited period of exclusive rights serves as
(non-guaranteed) compensation for the investment of scarce resources.
It is essential to keep in mind that these monopolies exist to serve the
and not the other way around. Right now, we are seeing ludicrous proposals
such as one to allow studios and record labels to commit computer crimes,
and one to mandate policeware in every new personal computer. I realize
that these two examples are more relevant to copyright law than to patent law,
but granting "exclusive Rights" without proper oversight is like playing with
fire; it makes it easy for the public to get seriously burned.
"To promote the progress of science and useful arts". -- Art I sec
8. (The word "patent" or "copyright" is not used, by the way. The
full text of that clause is "To promote the Progress of Science and
useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries;").
Is it possible you don't have a copy of the Constitution? If that's
true, you might want to bookmark
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Cortland County, New York, USA
Article I, Section 8 of the US Constitution says that Congress
shall have power
To promote the progress of science and useful arts, by securing for
limited times to authors and inventors the exclusive right to their
respective writings and discoveries;
The first US patent law was adopted in April 1790, although it
didn't mention software.
Arnoud Engelfriet, (almost) Dutch patent attorney - Speaking only for myself
Patents, copyright and IPR explained for techies: http://www.iusmentis.com/
> It is essential to keep in mind that these monopolies exist to serve the
> and not the other way around. Right now, we are seeing ludicrous proposals
> such as one to allow studios and record labels to commit computer crimes,
> and one to mandate policeware in every new personal computer. I realize
> that these two examples are more relevant to copyright law than to patent law,
> but granting "exclusive Rights" without proper oversight is like playing with
> fire; it makes it easy for the public to get seriously burned.
As those who have read any of my excessive number of earlier posts on
this subject will know, I'm very much in accord with all of this very
well stated message, notably the first sentence in the final paragraph
Seems to me moreover that the burden of proof should be on those who
claim that the public *is* benefiting from the current patent and
copyright systems -- something that I think is open to serious doubt,
especially if you consider the *damage* that these systems can and do
Taken literally, that only explains why Congress has the power.
> If you read Supreme Court rulings and Thomas Jefferson's writings, it is
> clear that copyrights and patents are not recognition of any sort of
> property rights in ideas (subject of patents) and expressions (subject of
> copyrights). ...
Can you give an example that shows the intent of the US Constitution?
From the majority ruling in Sony vs. Universal City Studios (Betamax case):
(See hrrc.org/html/majority.html for the full text)
The monopoly privileges that Congress may authorize are neither unlimited
nor primarily designed to provide a special private benefit. Rather, the
limited grant is a means by which an important public purpose may be
achieved. It is intended to motivate the creative activity of authors and
inventors by the provision of a special reward, and to allow the public access
to the products of their genius after the limited period of exclusive control
"The copyright law, like the patent statutes, makes reward to the owner a
secondary consideration. In Fox Film Corp. v. Doyal, 286 U.S. 123, 127, Chief
Justice Hughes spoke as follows respecting the copyright monopoly granted
by Congress, 'The sole interest of the United States and the primary object in
conferring the monopoly lie in the general benefits derived by the public from
the labors of authors.' It is said that reward to the author or artist serves
induce release to the public of the products of his creative genius." United
States v. Paramount Pictures, Inc., 334 U.S. 131, 158 (1948).
In its Report accompanying the comprehensive revision of the Copyright Act
in 1909, the Judiciary Committee of the House of Representatives explained
"The enactment of copyright legislation by Congress under the terms of the
Constitution is not based upon any natural right that the author has in his
writings, . . . but upon the ground that the welfare of the public will be
and progress of science and useful arts will be promoted by securing to
authors for limited periods the exclusive rights to their writings. . . .
"In enacting a copyright law Congress must consider . . . two questions: First,
how much will the legislation stimulate the producer and so benefit the public;
and, second, how much will the monopoly granted be detrimental to the
public? The granting of such exclusive rights, under the proper terms and
conditions, confers a benefit upon the public that outweighs the evils of the
temporary monopoly." H. R. Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909).
I think it is correct to say that Congress's constitutional purpose
and authority in passing copyright law is based on the public good,
and not a natural right theory. But it could also be true that Jefferson
and the other Founders believed in the natural rights theory for
copyrights. That is because Congress has limited powers, and
they did not expect Congress to address every natural right
that people have.
You say it is clear from writings that copyrights and patents were
not considered natural rights. It is not clear to me, and I was wondering
if you have any evidence from the authors and adopters of the US
>You say it is clear from writings that copyrights and patents were
>not considered natural rights.
It would be a logical nightmare to find a theory of natural rights for
copyrights or patents. There would be at least three problems.
1. If copyright or patent rights were natural rights, anybody owning a
coypright or patent right would own it forever. Every time you lighted
a match, you would owe a royalty to the estate of whoever first
discovered fire and claimed a natural right to be the only one to use
fire. And so on, for every idea that anybody ever had, throughout
history. It would be nonsensical for such a natural right to expire
after x years.
2. If copyright or patent rights were natural rights, it would be
impossible to resolve a conflict occurring if different people in
different jurisdictions created the same thing. Who would have the
right to prevent whom from copying the creation in which jurisdictions?
Any right derived from a natural right cannot depend on jurisdiction,
otherwise there is nothing natural about that right.
3. If copyright or patent rights are natural rights, it would be
impossible to resolve a conflict occurring if different people
independently created the same thing even in the same jurisdiction. A
person's natural right to his creation cannot meaningfuly be deprived
just because somebody else also independently acquired a natural right
to the same creation.
Maybe the natural right is only for 20 years. Admittedly
problematic, but lots of other rights have limitations.
> 2. If copyright or patent rights were natural rights, it would be
> impossible to resolve a conflict occurring if different people in
> different jurisdictions created the same thing. Who would have the
> right to prevent whom from copying the creation in which jurisdictions?
> Any right derived from a natural right cannot depend on jurisdiction,
> otherwise there is nothing natural about that right.
> 3. If copyright or patent rights are natural rights, it would be
> impossible to resolve a conflict occurring if different people
> independently created the same thing even in the same jurisdiction. A
> person's natural right to his creation cannot meaningfuly be deprived
> just because somebody else also independently acquired a natural right
> to the same creation.
Having rights and getting enforcement are 2 different things. Maybe you
don't have any natural rights over an independent creation anyway.
(Patent law can prohibit an independent recreation, but that may
be partially because it is usually impossible to determine whether
the re-invention is really independent.)
An article I read in the Atlantic suggests that none of the Founders believed
a natural rights theory for copyrights, and at least as far as Thomas Jefferson
is concerned, it is very easy to confirm this.
Jefferson's August 13, 1813 reply to Isaac McPherson (who had inquired about
why a Mr. Evans was refused a patent) contained a number of particulars about
that case, which I will not go into here.
It also clearly detailed Jefferson's thoughts regarding the basis for patent
by extension, copyright) law.
It has been pretended by some, (and in England especially,) that inventors have
a natural and exclusive right to their inventions, and not merely for their own
lives, but inheritable to their heirs. But while it is a moot question whether
origin of any kind of property is derived from nature at all, it would be
to admit a natural and even an hereditary right to inventors. It is agreed by
those who have seriously considered the subject, that no individual has, of
natural right, a separate property in an acre of land, for instance. By an
universal law, indeed, whatever, whether fixed or movable, belongs to all men
equally and in common, is the property for the moment of him who occupies it;
but when he relinquishes the occupation, the property goes with it. Stable
ownership is the gift of social law, and is given late in the progress of
It would be curious then, if an idea, the fugitive fermentation of an
brain, could, of natural right, be claimed in exclusive and stable property. If
nature has made any one thing less susceptible than all others of exclusive
property, it is the action of the thinking power called an idea, which an
may exclusively possess as long as he keeps it to himself; but the moment it is
divulged, it forces itself into the possession of every one, and the receiver
cannot dispossess himself of it. Its peculiar character, too, is that no one
possesses the less, because every other possesses the whole of it. He who
receives an idea from me, receives instruction himself without lessening mine;
he who lights his taper at mine, receives light without darkening me. That
should freely spread from one to another over the globe, for the moral and
mutual instruction of man, and improvement of his condition, seems to have
been peculiarly and benevolently designed by nature, when she made them, like
fire, expansible over all space, without lessening their density in any point,
like the air in which we breathe, move, and have our physical being, incapable
confinement or exclusive appropriation.
Inventions then cannot, in nature, be a subject of property. Society may give
exclusive right to the profits arising from them, as an encouragement to men to
pursue ideas which may produce utility, but this may or may not be done,
according to the will and convenience of the society, without claim or
from any body.
Accordingly, it is a fact, as far as I am informed, that England was, until we
copied her, the only country on earth which ever, by a general law, gave a
right to the exclusive use of an idea. In some other countries it is sometimes
done, in a great case, and by a special and personal act, but, generally
other nations have thought that these monopolies produce more embarrassment
than advantage to society; and it may be observed that the nations which refuse
monopolies of invention, are as fruitful as England in new and useful devices.
Considering the exclusive right to invention as given not of natural right, but
the benefit of society, I know well the difficulty of drawing a line between
things which are worth to the public the embarrassment of an exclusive patent,
and those which are not. As a member of the patent board for several years,
while the law authorized a board to grant or refuse patents, I saw with what
progress a system of general rules could be matured ...
Ok, that is Jefferson's view. Was it typical? I believe he advocated
a clause in the constitution against monopolies altogether. (He had
no part in the copyright/patent clause.)
I did a search, and Madison seems to have been somewhat inconsistent, at times
almost suggesting a right to monopoly, at others not.
In a letter to Jefferson he argued that copyrights were too valuable to give up
entirely, and made an appeal that, (paraphrased) if the public reserves the
to "buy out" the monopoly at a price set at the time the monopoly is granted,
wouldn't that be enough of a safeguard? I do not know how Jefferson replied.
An interesting (if somewhat lengthy and dense) article talking about Madison's
possible intent can be found at cyber.law.harvard.edu/eldredvreno/walters.html.
Note that the final language of the Constitution ("limited Times", "_may_
"promote the progress of the Arts and Sciences") is inconsistent with a strict
"natural property" viewpoint. The Constitution, Jefferson's 1813 letter, and
Betamax decision all appear to be on the same page.
But the Constitution does not say "may grant". It says:
The Congress shall have Power ...
To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right
to their respective Writings and Discoveries;
If it really wanted to reject the natural rights view, it could have said:
To promote the Progress of Science and useful Arts, by *granting*
for limited Times to Authors and Inventors exclusive protection
for respective Writings and Discoveries;
But the Constitution's wording seems carefully chosen to allow for
the natural rights view.
If you are correct, then I think that the US Supreme Court should
strike down the copyright term extension, as nobody seriously
thinks that it promotes progress. For details on the case, see: