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Lobbying and lawyers are one thing; ideas are another. Over time, the force of an idea is what carries the day, one way or the other, not short-term tactics aim

by grellas 16y ago

Lobbying and lawyers are one thing; ideas are another. Over time, the force of an idea is what carries the day, one way or the other, not short-term tactics aimed at pressuring politicians, distorting facts, or putting it over on the public. This particular debate - that is, whether a society should confer monopoly rights for the benefit of inventors and authors - happens to be several centuries old. An extremely articulate proponent for the anti-monopoly view was none other than Thomas Jefferson. Here is what he wrote to Isaac McPherson in 1813: "That ideas 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, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an 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 complaint from any body." (see the full text of the letter, which is well worth reading in its entirety, here: http://www.temple.edu/lawschool/dpost/mcphersonletter.html http://www.temple.edu/lawschool/dpost/mcphersonletter.html) This is a philosophical argument against the idea of patents generally, beautifully expressed. In his day, Jefferson lost this argument and the framers of the U.S. Constitution added Article I, section 8, clause 8, which provides that the Congress shall have the 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." This was followed by enactment of the first U.S. Patent Act in 1790 and by an unbroken body of law ever since upholding patents with a vigor that is quite remarkable. Today, patent and copyright laws are once again being re-examined from a philosophical perspective. Is it really true that monopoly grants of this type add value to a society by fostering creative activity? Do such laws truly benefit deserving persons or do they mainly promote the interests of faceless corporations and opportunistic trolls? Is it honest to call it "intellectual property" if this merely begs the important underlying question whether intangible rights (really, exclusive-right or monopoly grants) of this type should even be recognized by law? These are legitimate questions and the debate is a serious one. But there is also a very legitimate argument on the other side of this debate, what might be called the overwhelming majority position of the past two centuries that has favored patents and copyrights. That argument was certainly not lost on the nearly 7,000 authors, professors, and other persons of all non-lawyer ranks in society who filed such strong objections to the proposed Google book settlement based on threats to their copyright interests as to cause the judge to reject it. Nor is it lost on the major technology companies who continue to file patents in great number even as they advocate against frivolous patents (see, e.g., the "Latest Patents" site, which duly notes a large number of patent filings by Google made with great frequency: http://www.latestpatents.com/google-patent-applications-published-on-14-april-2011/ http://www.latestpatents.com/google-patent-applications-publ...). While there is obviously an aspect to this debate that involves lawyers, lobbying, and circular logic, those issues are in my view at the fringes of the debate, and it hardly promotes careful analysis to bring them front and center and to say that this is all that is involved in the fight. A superficial attack of this type is really no more defensible as a way of advocating a position than is the use of circular logic that is being criticized in the piece itself. Much more depth is needed to get to the most important issues at stake.

fleitz 16y ago
The entire world would be a much better place if we listened to Thomas Jefferson a little more often. In general he's about 300 years ahead of his time in terms of civil liberties and other basic human rights. The necessity of patent and copyright law is best explained by William Pitt, 'Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.'
tzs 16y ago
I don't quite see how you can say article I, section 8, clause 8 represents Jefferson losing the argument. In the quote you provide from Jefferson, he says: Society may give an 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 complaint from any body. Isn't article I, section 8, clause 8 embodying just what Jefferson said a society may do? Or are you distinguishing it from what Jefferson wrote because he specifically mentions profits, whereas article I, section 8, clause 8 allows Congress to give the inventors "exclusive Rights", which perhaps goes farther than profits? Under a Lockean type of philosophy, which is what the majority of the Framers followed, a man was entitled to own the fruits of his labors, including mental labors. If the Lockeans had won, inventions would be property of the inventor forever. Article I, section 8, clause 8 implicitly rejects the Lockean view by only authorizing a limited monopoly.

by grellas 16y ago

fleitz 16y ago

The entire world would be a much better place if we listened to Thomas Jefferson a little more often. In general he's about 300 years ahead of his time in terms of civil liberties and other basic human rights. The necessity of patent and copyright law is best explained by William Pitt, 'Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.'

tzs 16y ago

I don't quite see how you can say article I, section 8, clause 8 represents Jefferson losing the argument. In the quote you provide from Jefferson, he says: Society may give an 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 complaint from any body. Isn't article I, section 8, clause 8 embodying just what Jefferson said a society may do? Or are you distinguishing it from what Jefferson wrote because he specifically mentions profits, whereas article I, section 8, clause 8 allows Congress to give the inventors "exclusive Rights", which perhaps goes farther than profits? Under a Lockean type of philosophy, which is what the majority of the Framers followed, a man was entitled to own the fruits of his labors, including mental labors. If the Lockeans had won, inventions would be property of the inventor forever. Article I, section 8, clause 8 implicitly rejects the Lockean view by only authorizing a limited monopoly.