Monopoly Lawyers Shouldn’t Write Monopoly Laws
torrentfreak.com
torrentfreak.com
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)
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-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.
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.'
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.
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.
I reject the OP's delineation of business vs. legal outright. If you're doing business on the web, you need to be able to defend yourself against C&D letters. Whether that means going to trial, settling the claim or calling the letter writer's bluff: you need to be able to do all three.
Bar association self-regulation ensures that people like yourself continue to pour bad money after bad on lawyers. But, really, you have no one except yourself to blame. You got duped.
And you could have argued it yourself for free (plus 6 figures in law school tuition, plus foregone salary for those 3 years).
I think the point stands that court is very expensive. Is that controversial to anybody?
What part of my post did you think invited an attack on lawyers generally? IAAL, so I'll just ignore the fact that you missed the point entirely, and move on.
If it's the type of C&D letter that you can laugh at and publicly post a silly retort to on the internet for the lulz, then yeah, go right ahead. Court filing fees may be tiny but screwing up a lawsuit because you didn't take Civil Procedure is expensive. You're saying you're a lawyer downthread.. would you really recommend DIY for any non-lawyer in any real case?
I think its a human error to allow such behavior, but one whose results will, given enough time, be detected and corrected.
In the case of monopoly laws its worse in the us than europe, because our legal system only asks you to pay for your defense in the event of you losing the trial.
The rest of his argument is essentially that obeying the law costs him money as an entrepreneur if he gets caught, and so the things he wants to do should not be illegal.
Citation needed.
I don't see why this would necessarily be the case at all. If you're not either 1) a big corp or 2) running a public interest PAC, there's absolutely no reason you'd be involved or even aware that some committee member is working on a bill they're going to propose. Even then, the public interest pacs are shorter on cash and derided by half of the political spectrum as "community organizers" or whatnot so it's basically just the big corps and their lobbying firms. Randian paradise.
Lobbying costs money. Using the same sort of analysis as in the article, it's easy to see that the available funds for lobbying are heavily biased in one direction.
Or look at business vs. labor issues. Again, heavy lobbying from both sides.
How about health care? Massive lobbying from all sides.
Environmental regulation? Same.
Immigration? Same.
Business vs labor, I'm not going to bother to try and write a thesis tracking down the funding but I would suspect that there's more money on the business side. Heard of "Americans for Prosperity"?
Same with healthcare. Note that Obama spent significant effort courting the health insurance lobby for his bill, combined with a little courting of labor and no courting of consumer advocates.
Environmental regulation? The oil industry vs Sierra Club? Please.
Immigration, I'm not even familiar with the sides involved, the minutemen don't seem organized enough to lobby effectively.
Under the article's thesis, we'd expect most of the lobbying to be from the supporters of the current laws, trying to strengthen them.
Given that everyone's talking about the deficit right now, you'd think those would be on the chopping block, wouldn't you? Wonder why not.
Most of the lobbying is from people who are seeking an outsized return on their lobbying. Decisions worth billions to an industry can be influenced for mere hundreds of thousands.