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Election 2006 (and beyond): Digital Copyright Canada
From: mcr_-at-_sandelman.ottawa.on.ca (Michael C. Richardson)
Date: 1 Apr 1998 21:30:25 -0500
From patent-news
------- Forwarded Message
From: srctran@world.std.com (Gregory Aharonian)
Message-Id: <199804011904.AA05931@world.std.com>
To: patent-news@world.std.com
Subject: PATNEWS: Is Intellectual Property Legitimate?
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!19980401 Is Intellectual Property Legitimate?
One of my readers gave me person to share his article with all of you,
whether or not IP is legitimate. For software, while I support patenting
of NOVEL and UNOBIVOUS software concepts (and could write the killer
article on why software patent examination is completely illegitimate),
I pretty much agree with others that progress in software technology would
not suffer one iota if software patenting was prohibited (not that anyone
could come up with a statutorial-implementable definition of software).
And until the patent bar takes the issue of quality patent examining
seriously, the best April Fool's parody of the patent examination system
is itself. In the past 20 years, 700,000+ electronics patents have
issued. 80% of them, for the most part, have cited NOTHING from any of
global and national engineering and electronics societies (IEEE, IEE,
SPIE, APS, ACM, SAE, etc.) What is funnier than that in the patent world?
Greg Aharonian
Internet Patent News Service
====================
Editorial
Is Intellectual Property Legitimate?
by N. Stephan Kinsella[*]
[reprinted with permission from the PBA Intellectual Property Law
Newsletter, p. 3 (Vol. 1, No. 2, Winter 1998)]
As Socrates pointed out, the unexamined life is not worth living.
As citizens, lawyers, and, more particularly, as intellectual property
lawyers, we should, from time to time, examine just what it is we are doing
in our lives and careers. It is interesting, for example, that patent
lawyers take for granted the legitimacy of having a patent system. In
other words, most of us think we should have patent laws--and copyright and
trademark and trade secret laws, as well. It would probably surprise many
IP lawyers to know that the legitimacy of IP laws historically has been,
and continues to be, the subject of some controversy, at least in
theoretical or academic circles. Since we are in the business of obtaining
protection for clients under these IP laws, perhaps the legitimacy of IP
laws bears examining.
Locke and Bentham
Proponents of IP laws typically use two types of arguments to
justify IP laws--such as copyright and patent laws, which I will focus on
here. The first is a Lockean-style natural law or natural rights argument,
which argues that creations of the mind are entitled to protection just as
tangible property is. Part of the motivation for this theory is
fairness--IP is brought into being by its creator, so as a matter of
fairness, the creator has a right to own it and profit from it. The second
type of argument is more utilitarian and wealth-maximization based, and
essentially argues that production, creativity, and innovation in society
is maximized by granting monopolies to writings and inventions so as to
"encourage" authors and inventors.
It's Just Natural
One problem with the natural law approach is that intangible
property such as patents and copyrights is not like tangible property; most
significantly, IP is not naturally "scarce," in the economic sense. Under
Lockean theory, the state of nature contains natural property, which is
economically scarce, meaning that my use of Blackacre *conflicts* with your
use of Blackacre. Use of such property is *exclusive*, since my use
excludes yours, and vice-versa. So that scarce property and resources
can be used without potential users eternally warring over these tracts,
ownership is allocated (to the first user who "mixes his labor" with it,
according to Lockean theory; or to the creator for created goods) so as
to solve this problem.
However, were we in a Garden of Eden where land and other goods
were infinitely abundant, there would be no scarcity and thus no need for
property rules. For example, your taking my lawnmower would not really
deprive me of it, if I could conjure up another in the blink of an eye.
Lawnmower-taking in these circumstances would not be "theft". Thus,
classical property rights do not seem to naturally apply to things of
infinite abundance.
Like the magically-reproducible lawnmower, ideas (as implemented in
inventions or creative works, for example) are also not scarce, at least
not in the same way as tangible or physical property. For example, if I
invent a new technique for growing bananas, it does not take my technique
from me if you also grow bananas in this way. Your use does not exclude
mine. We can both use my technique to grow bananas; there is no economic
scarcity and no possibility of conflict over the use of a scarce resource,
and thus no need for exclusivity.
Similarly, if you copy a book I have written, the original
(tangible) book is still there. Thus, books are not scarce in the same
sense as is a piece of land or a car. As Thomas Jefferson, himself an
inventor and the United States' first Patent Examiner, wrote, "He who
receives an idea from me, receives instruction himself without lessening
mine; as he who lights his taper at mine, receives light without darkening
me." Thus, the argument goes, since use of another's idea does not deprive
him of its use, no conflict over its use is possible, which undermines the
natural-law justification for property rights in IP.
A Fair Dinkum
As for the charge that it would be unfair to not provide a right to
one's intellectual creations, even advocates of IP do not maintain that the
legal system must reward everyone for every single useful idea they come up
with. For example, philosophical or mathematical or scientific truths
cannot be protected: commerce and social intercourse would grind to a halt
were every new phrase, philosophical truth, and the like considered the
exclusive property right of its creator. But if it is fair to leave these
creators unrewarded (e.g., more theoretical science and math researchers
and philosophers), why is it *un*fair to not reward other types of creators
(more practical inventors and entertainment providers)?
Indeed, it could be argued that it is unfair to discriminate
between classes of intellectual creators, by providing one group with IP
rights and the other group with nothing. For example, I can get a patent
on a new mousetrap, but, in one recent case (In re Trovato, 33 USPQ2d 1194
(CAFC 1994)) the inventor of a new way to calculate a number representing
the shortest path between two points, an extremely useful technique, was
denied patent protection because this was "merely" a mathematical
algorithm. Why the distinction here (a critic might ask)? Do not both
discoveries require creative intellect, and benefit society? In short,
the fairness argument falters, since it cannot be applied uniformly and
consistently without itself causing unfairness (and virtually no one is
willing to provide IP protection broadly enough to eliminate this
perceived unfairness).
Utility Belt
The utilitarian defense of IP has also come under attack.
Utilitarianism, founded by Jeremy Bentham, holds that utility, by some
measure (such as wealth or its proxies, creation and innovation) should
be "maximized," and thus favors legislation that causes certain desired
results or consequences to be produced. The utilitarian theory is based
on the assumption that such creators would not invest the time or capital
necessary to produce such products, if others could copy them with
impunity. This is the common justification patent lawyers typically
give--"patents are needed to encourage inventors to invent". It is also
the rationale in the U.S. Constitution's grant of copyright and patent
authority, which provides that Congress shall have power "To promote [i.e
*encourage*] 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" (Art. I, 8).
Critics point to several problems with justifying IP on utilitarian
or similar grounds. The first objection is that utilitarianism is an
ends-justifies-the-means philosophy, which is itself problematic. Horrible
violations of individual rights can be perpetrated in the name of this
philosophy, as the history of this bloody century shows. As for IP,
utilitarians hold that the "end" of encouraging more innovation and
creativity is used to justify the arguably immoral "means" of restricting
the freedom of individuals to use their own physical property as they see
fit.
Second, it is debatable whether copyrights and patents really are
necessary to encourage the production of creative works and inventions,
and whether overall social wealth is increased or decreased due to the
existence of such laws. Econometric studies one way or the other are
controversial and arguably inconclusive. Maybe there would even be *more*
innovation if there were no patent laws; perhaps more money for R&D would
be available if it were not being spend on patents and lawsuits; perhaps
companies would have an even greater incentive to innovate if they could
not rely on a near 20-year monopoly.
Further, some argue that the grant of a patent for processes and
discoveries having practical application skews research and development
away from theoretical R&D. It is not clear that society is better off with
more practical invention and less theoretical R&D. Additionally, many
inventions are patented for defensive reasons, and much overhead is spent
on patent lawyers' salaries and PTO fees, that would not otherwise have to
be spent if there were no patents.
Paying the Bills versus Intellectual Integrity
It is not surprising that IP attorneys seem to take for granted
the legitimacy of IP; after all, it pays the bills. This acknowledged
self-interest does not necessarily mean that we are wrong to support IP;
but it does give us cause to be skeptical of the seductive appeal of what
may be makeweight rationalizations. As members of our community and as
participants in the governmental and legal machinery, it behooves us to
recognize our own built-in bias and, on occasion, to question and reflect
on the widely-held justifications that we hear ourselves sometimes
repeating by rote.[1]
Notes
[*] Paul Gagne, Tony Diehl, and Rob Rosenthal provided useful comments on
an earlier draft. The views expressed herein are, of course, merely the
present speculations of the author alone, and should not be attributed to
any other person or entity. The author practices intellectual property law
with the Houston Office of the Philadelphia-based law firm Duane, Morris &
Heckscher LLP; nskinsella@duanemorris.com.
[1] For further discussion of some of the ideas in this editorial, see Tom
G. Palmer, Are Patents and Copyrights Morally Justified? The Philosophy of
Property Rights and Ideal Objects, 13 Harv. J. Law & Publ. Pol'y 817
(1990), as well as other articles in same issue (No. 3, Summer 1990) and in
Vol. 13, issue no. 1 (Winter 1990) of this journal; Tom G. Palmer,
Intellectual Property: A Non-Posnerian Law and Economics Approach, 12
Hamline L. Rev. 261 (1989); Wendy McElroy, Contra Copyright, The
Voluntaryist (June 1985) and Liberty on Copyright and Patents (unpublished
drafts on file with author); Murray N. Rothbard, The Ethics of Liberty
(1982), at 123-24; Murray N. Rothbard, 1 Man, Economy, and State: A
Treatise on Economic Principles (1962), at 652-60; Wendy J. Gordon, An
Inquiry into the Merits of Copyright: The Challenges of Consistency,
Consent, and Encouragement Theory, 41 Stan. L. Rev. 1343 (1989). Symposium:
Toward a Third Intellectual Property Paradigm, 94 Colum. L. Rev. No. 8
(December 1994). A classic series of essays on economic and other aspects
of IP is Sir Arnold Plant, Selected Economic Essays and Addresses (1974);
see also Edward C. Walterscheid, The Early Evolution of the U.S. Patent
Law: Antecedents, appearing in multiple parts at 76 JPTOS 697 & 849 (1994);
77 JPTOS 771 & 847 (1996); 78 JPTOS 77, 615, & 665 (1996).
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