Today's Date: October 22, 2014 Search | Home | Contact | Services | Patent Attorney | Patent Search | Provisional Patent Application | Patent Application | Software Patent | Confidentiality Agreements

Patents, Copyrights and the Constitution, Perfect Together


Written by Gene Quinn
President & Founder of IPWatchdog, Inc.
Patent Attorney, Reg. No. 44,294
Zies, Widerman & Malek
Blog | Twitter | Facebook | LinkedIn
Posted: May 4, 2011 @ 12:20 pm
Tell A Friend!




Meet Gene in Chicago
Join Gene Quinn for a Happy Hour mixer on Tues, Oct. 14, 2014, 5pm to 7pm at The Deck
CLICK HERE to RSVP.
Meet Gene in NJ
Join Gene Quinn for a Happy Hour mixer on Tuesday, Oct. 21, 2014, 5pm to 7pm at The Hyatt Morristown
CLICK HERE to RSVP. Sponsored by Innography.


Congressional power to grant both patents and copyrights is derived from Art. I, Sec. 8, Clause 8 of the United States Constitution, the so-called Intellectual Property Clause.  To patent attorneys Art. I, Sec. 8, Clause 8, will forever be known as the Patent Clause.  For attorneys specializing in copyright law this clause is known as the Copyright Clause.  It is probably best to simply recognize that our founding fathers deemed intellectual property rights so vitally important to the success and stability of our new country that these rights were written into the Constitution, a document not generally known for its length and specificity.

As James Madison stated in Federalist Paper No. 43, the usefulness of the Congresses power to award both patents and copyrights “will scarcely be questioned.”  Madison, Debates in the Federal Convention of 1787, at 512-13 (Hunt and Scott ed. 1920).

Nimmer also explains:

When the framers of the United States Constitution met in Philadelphia to consider which powers might best be entrusted to the national government, there appears to have been virtual unanimity in determining that copyright should be included within the federal sphere.  Although the committee proceedings that considered the copyright clause were conducted in secret, it is known that the final form of the clause was adopted without debate.

1 Melville B. Nimmer & David Nimmer, Nimmer on Copyrights, § 1.01[A] (2000).

Congress has been exercising its prerogative to grant both patents and copyrights.  It is indeed important to remember that the ultimate decision with respect to whether to grant protection in either copyrights or patents is left to the sound discretion of Congress.  Nothing in the Constitution requires that Congress actually award protection in the form of copyrights and/or patents.  In this regard the United States Supreme Court has explained:

While the area in which Congress many act is broad, the enabling provision of Clause 8 does not require that Congress act in regard to all categories of materials which meet the constitutional definitions. Rather, whether any specific category of “Writings” is to be brought within the purview of the federal statutory scheme is left to the discretion of the Congress. The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent, not only on the character of the writing, but also on the commercial importance of the product to the national economy.

Goldstein v. California, 412 U.S. 546, 562 (1973).  Nevertheless, Congress has consistently chosen to grant both patents and copyrights since the enactment of the first copyright statute in 1790, and the first patent statute, also in 1790.

The Copyright Act has undergone almost continual change and modification since that year. The three most important modifications to the Copyright Act are perhaps the Copyright Act of 1909, the Copyright Act of 1976, and most recently, the Digital Millennium Copyright Act, which was passed in 1998, by the second session of the 105th Congress.

Like the first Copyright Act, the first Patent Act has undergone changes and modifications since it was first enacted. These changes, however, are generally speaking not of the variety experienced by the Copyright Act.  Historically the Copyright Act has increasingly becoming a piece of special interest legislation with specialized provisions to please almost every special interest group and lobbyist.  This is not to say that the Patent Act does not cater to special interests, but rather the Patent Act as a whole is a more stable and cohesive statute than is the Copyright Act, although with patent reform efforts underway currently in Congress it is quite possible that the Patent Act will succumb to special interest needs and simply change patent law without making any discernible positive difference.  Nevertheless, several major revisions in the Patent Act have occurred, with the last  major revision occurring in 1952. More recently the Patent Act was revised in 1999 by the enactment of the American Inventors Protection Act, which amended Titled 35 in several significant ways.

The reason the U.S. Constitution grants Congress the power to legislate in the area of intellectual property is to “promote the Progress of Science and useful Arts.”  See U.S. Const. art. I, § 8, cl. 8.  It is interesting to note that the word “science” refers to protection of copyrightable subject matter and the term “useful arts” refers to the protection of patentable inventions.  Giles Sutherland Rich, the father of the 1952 Patent Act, explained this in an address at Franklin Pierce Law Center in 1994.  Judge Giles Sutherland Rich explained:

[O]ver a time of two centuries, the meaning of even common words may change. “Science” as we use it today does not have the connotation it did in 1787 when it referred to knowledge in general, in all fields of knowledge. What we mean today by “science” was then called natural philosophy. It was quite clearly intended by the authors of the Constitution that copyright, not patents, was intended to promote science, and the province of rights granted to inventors respecting their “Discoveries” was to promote the “useful Arts.” Yet we find never ending references in the opinions of Federal Judges, perhaps looking at the patent clause for the first time, and taking what is there written at face value, to the promotion of “Science and the useful Arts” by the issuance of patents.

35 IDEA 1, 2 (1994).  Notwithstanding the evolution of the Constitutional language, both the patent and copyright laws promote this progress by extending to patent and copyright holders the right to exclude others.

The patent laws offer this exclusive right for a limited time as an incentive to inventors, entrepreneurs and corporations to engage in research and development, to spend the time, energy and capital resources necessary to create useful inventions; which will hopefully have a positive effect on society through the introduction of new products and processes of manufacture into the economy, including life saving treatments and cures.  See Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 480 (1974).  See also Mazer v. Stein, 347 U.S. 201, 219 (1954) (“The economic philosophy behind the clause empowering Congress to grant patents and copyrights is the conviction that encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors in ‘Science and useful Arts.’”); Universal Oil Products Co. v. Global Oil Refining Co., 322 U.S. 471, 484 (1944)(“As a reward for inventions and to encourage their disclosure, the United States offers a seventeen-year monopoly to an inventor who refrains from keeping his invention a trade secret.”)

Likewise, the copyright laws offer exclusive rights for a limited time as an incentive to authors to create.  The purpose of providing authors with copyright protection is to stimulate activity in the arts, which will in turn provide intellectual enrichment for society.  This utilitarian goal is achieved by permitting authors to reap the rewards of their creative efforts.

Given that today’s business world is increasingly based on a company’s ability to innovate and acquire intangible assets in the form of both copyrights and patents, it would appear as if the constitutional goal of stimulating creativity and invention has been wildly successful.

- - - - - - - - - -

For information on this and related topics please see these archives:

Tags: , , , , , , , , , ,
Posted in: Copyright, Gene Quinn, IP News, IPWatchdog.com Articles, Patents

About the Author

is a Patent Attorney and the founder of the popular blog IPWatchdog.com, which has for three of the last four years (i.e., 2010, 2012 and 2103) been recognized as the top intellectual property blog by the American Bar Association. He is also a principal lecturer in the PLI Patent Bar Review Course. As an electrical engineer with a computer engineering focus his specialty is electronic and computer devices, Internet applications, software and business methods.

 

38 comments
Leave a comment »

  1. Gene,

    Thanks for pointing out Federalist Paper No. 43 written by James Madison. We’ve had too much of the “Jeffersonian story of patent law” (especially from SCOTUS) when it comes to interpreting the Patent Clause.

  2. EG-

    I agree. That is puzzling to some extent. Yes, Jefferson did write about patents but I think the history is rather clear. Jefferson was finally persuaded by Madison. It would seem that Madison wore Jefferson down and convinced him it was essential. Later Jefferson went on to understand exactly what Madison was explaining.

    Cheers.

    -Gene

  3. Gene,
    I think a couple of factors play into it. One would be volume written. Jefferson had written a lot about patents, while Madison doesn’t seem to have written nearly as much. The Federalist Paper you cited has very little more to say, and doesn’t provide much more context than the text itself of clause he is discussing. Contrast that to Jefferson, who had written many things about how he felt about patents, was the first US patent examiner, thus greatly shaping what our patent system would became, and had an interest in invention himself, although he, like Benjamin Franklin, did not seek patents for his inventions.

    Another factor is that Jefferson is given more attention in general than Madison. We have an Independence Day, but not a Constitution Day, and our bicentennial celebrated independence. There is far more prevalent usage of ‘Jefferson’ and ‘Independence’ than ‘Madison’ and ‘Constitution’ in cities, streets, and such. As a whole, it would appear that America likes/cares for/listens to Jefferson much more than Madison, and even the Supreme Court is not an exception.

  4. Bobby,

    Jefferson may get more play, but Madison was at the Constitutional Convention, not Jefferson. I suggest you also read Professor Mossof’s article (WHO CARES WHAT THOMAS JEFFERSON THOUGHT ABOUT PATENTS) to understand why Madison should get far more credit and Jefferson far less: http://www.lawschool.cornell.edu/research/cornell-law-review/upload/CRN502Mossoff.pdf . SCOTUS could also take many a lesson from what Professor Mossof wrote, including ceasing and desisting from telling the “fiction” known as the “Jeffersonian story of patent law.”

  5. I’m not sure why Madison would get more credit when he said very little, and didn’t really seem to advocate a particularly different viewpoint. You can’t get blood out of a stone, although it’s quite clear that Mossof tried his hardest to do so.

    As for utilitarian patents (which you and Mossof seem to label) Jeffersonian versus patents as natural rights, I have a few things to say. First, the US patent system is conclusively one of a utilitarian nature. The right granted to Congress is not in granting patents, but promoting progress. Congress is not enabled to grant patents, but rather is enabled to promote the useful arts BY granting patents. That the language of the Constitution makes it so evidently clear to even modern readers that we have an optional, utilitarian system is likely why there was no debate of the statute in question. Benjamin Franklin’s viewpoint on invention seems to be similar to Jefferson’s in many regards, including actually being an inventor, and he was at the Constitutional Convention. His words on invention would likely be labeled as ‘communist’ by some of the posters here, and if one were to substitute ‘inventions’ with ‘software’ and modernize the wording a bit, the following quote could sound like some one would expect to hear from Richard Stallman: “That as we enjoy great Advantages from the Inventions of Others, we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously.”

    Also, there’s no good reason to choose a natural rights or close equivalent argument over a utilitarian one. If the current system works very well from a utilitarian viewpoint, than patent holders would retain the same rights under both systems. If it doesn’t work well, than advocating the status quo, the position someone taking a natural rights argument would hold, is a roadblock to progress.

  6. Benjamin Franklin’s viewpoint… on invention would likely be labeled as ‘communist’ by some of the posters here,… Richard Stallman: “That as we enjoy great Advantages from the Inventions of Others, we should be glad of an Opportunity to serve others by any Invention of ours, and this we should do freely and generously.”

    Bobby, you are confused. The sharing by all is what happens after the limited time of exclusivity. It is the Quo of the Quid Pro Quo that you have not mastered yet.

  7. “This is not to say that the Patent Act does not cater to special interests, ”

    The Patent Act specifically caters to special interests, namely large corporations and people with deep pockets.

    When IBM comes up with a new invention, they have the resources to get patent “protection”. And they are able to do this for each and every invention. If an individual comes up with an invention, they do not have the resources to get patent “protection”. So after one year of public disclosure, their invention is outright confiscated and turned over to the public. Under the current system, you have to pay the patent office for the privilege of owning your invention.

    So, large companies and people with deep pockets are able to keep their discoveries and everyone else’s discoveries are confiscated against their will and turned over to the public.

    So the patent clause; “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 implemented as: “To promote the Progress of Science and patent royalties for large corporations and individuals with deep pockets, by securing for limited times to Inventors the exclusive Right to their respective Discoveries for a fee of around $5,000-$20,000 for each discovery, otherwise their discoveries shall be seized against their will and ownership turned over to the general public”

  8. BD,
    Franklin chose to forego any ‘Quid’ and shared immediately with no exclusivity. He was offered a patent, and he turned it down with the words I quoted. That others had shared inventions freely without a period of exclusivity was reward enough for him. Disclosure via Quid Pro Quo is not ‘freely and generously’, as the term at least implies that the two things exchanged are of roughly equivalent value.

  9. Oh Really?

    You are simply incorrect and rather narrow minded at that.

    You say: “The Patent Act specifically caters to special interests, namely large corporations and people with deep pockets.”

    There is very little evidence of that as the Patent Act currently stands. Your proffered argument centers around the fact that those with money are able to obtain patent protection. That is life and certainly does not mean that the law is at all tilted toward special interests. Your argument might as well be that real estate law tilts toward special interests because it favors those who can afford to buy property and discriminates against those who don’t have the funds to buy property. That is just about as ridiculous an argument as I have ever heard.

    You say: ” discoveries are confiscated against their will and turned over to the public.”

    Again, not only are you 100% wrong but you are showing your bitterness and a conspiracy mindset that is rather unbecoming. There is no confiscation of rights. Those who choose not to avail themselves of the law cannot in any intellectually honest way be upset with those who do avail themselves of the rights provided by the law.

    It seems pretty clear that you have an ax to grind. I suspect that you disclosed your invention without filing a patent application and then learned that you were not able to obtain a patent due to your own activities. Perhaps you didn’t have the financial resources to pursue your invention and somehow feel that the world owes you a patent. I personally think you need to grow up and look yourself in the mirror. Blaming others for exercising their rights and having the resources to exercise those rights is nothing more than a narrow-minded form of class warfare.

    There are plenty of ways for individuals to economically and responsibly pursue patent rights. If a product can make money there are avenues available to inventors. Not working hard and pursuing those options in a fiscally reasonable way and then blaming the system does not describe a problem with the system.

    -Gene

  10. as the term at least implies that the two things exchanged are of roughly equivalent value.

    so….

    You are saying then that Franklin’s inventions are worthless because he accepted zero Quid?

    (Yes, I know that is not what you meant – but it does point out that you still do not quite grasp what the Quid Pro Quo is. Just because one individual, no matter how influential, made a personal choice and dedicated freely, that is exactly not what the patent system is about. In direct contraposition, the fact that what Franklin did is so expressly not what the patent system is about, shows that your understanding of the patent system is deficient.

    You do realize that what Franklin did and discussed was expressly not what the Constitution called for, correct?

  11. Bobby-

    You say: “I’m not sure why Madison would get more credit when he said very little, and didn’t really seem to advocate a particularly different viewpoint.”

    Statements like that make it very difficult to take anything you say at face value and suggest that everything you say is said off-the-cuff without any basis in reality. If you want to be taken seriously and engage in a real debate of the issues it would be far more beneficial to inform yourself of the facts before making such a ridiculous statement that evidences you know little to nothing about the topic.

    -Gene

  12. Bobby-

    You say: “There is far more prevalent usage of ‘Jefferson’ and ‘Independence’ than ‘Madison’ and ‘Constitution’ in cities, streets, and such.”

    So now you are allowing historical reality to be influenced by what the masses believe? Do you realize that 30% of adult American’s believe the Sun revolves around the Earth? With such a high percentage believing that should that be taught as an acceptable alternative? Where do you draw the line on what the masses believe and what is reality?

    Ignore history if you want, but just be prepared to be called out by me (and presumably others) who take the time to know our history and know the role Madison played. Madison influenced Jefferson greatly. It was Madison who was the primary champion of patents and convinced Jefferson and others to go along with him.

    Furthermore, your understanding of history and Jefferson seems challenged at best and false at worst. Jefferson’s own view of patents matured over time. He was the first patent examiner and issued patents on innovations. He came to understand the importance of patents, so focusing on his early writings and thoughts is akin to writing a book review or movie review after the first act is complete. Extraordinarily silly really.

    Why not talk about Abraham Lincoln. If you want to talk about what the masses think it is undeniable that Lincoln stands with far more stature in society today than does Jefferson, and it was Lincoln who talked about the patent system providing fire and inspiration to foster creative genius. Lincoln was also the only President to have a patent.

    Obviously when it comes to history your knowledge is exceptionally limited. So continue this discussion if you want, but just be prepared to have your lack of knowledge challenged and your positions exposed. Shooting from the hip, making incorrect factual statements and passing them off as commonly appreciated fact is not something I will allow to go unanswered.

    -Gene

  13. BD,
    I know Franklin’s personal choice is not what the patent system is about. That’s exactly my point. Franklin was in that statement advocating what is today called ‘free culture,’ and a rather strong instance of it at that, which generally is quite opposed to the notion of patents and copyright as natural rights.

    Gene,
    The views he expressed to Jefferson later on largely concurred with him, and Madison’s statement in the Federalist 43 was incredibly brief, and didn’t really say anything about it being a natural right or anything like that. He said that it was good for inventors and the public (which is consistent with a utilitarian view of patents), wasn’t something he thought would be heavily debated, and made an erroneous claim about British common law.

    “So now you are allowing historical reality to be influenced by what the masses believe?”
    No, I’m saying that Jefferson is more popular so quoting Jefferson is more popular. As for why not Lincoln, Lincoln, while popular, was not a founding father, so his role in Constitutional matters is going to be diminished. Also, aside from the statement about fueling the fire of genius (which is again consistent with a utilitarian view on patents), he doesn’t seem to have gone on at length about patents (although if there is significant further reading from him, please let me know). Excuse me for being blunt, but it seems that you only want people to listen those who you agree with, which I don’t consider to be a healthy attitude. I’d rather have intelligent debate that’s open to moderates and even extremists from both sides, and hoping that it will result in the best choice being clear with all the evidence and arguments presented.

    “Ignore history if you want, but just be prepared to be called out by me (and presumably others) who take the time to know our history and know the role Madison played. Madison influenced Jefferson greatly. It was Madison who was the primary champion of patents and convinced Jefferson and others to go along with him. ”
    This strikes me as interesting. About all I can easily find with Madison on patents is that he was the author of the patent clause and that he wrote The Federalist 43. I’m not saying that Madison didn’t influence Jefferson on the subject of patents, but I’ve seen no evidence of it and none has been provided. The influence of Jefferson’s views on patents seems to have been with his years as a patent examiner and seeing many inventions brought to the public, although when the law changed and allowed him to focus on other duties of the Secretary of State, he grew quite concerned over the way patents became trivially granted.

    “He was the first patent examiner and issued patents on innovations. He came to understand the importance of patents, so focusing on his early writings and thoughts is akin to writing a book review or movie review after the first act is complete. Extraordinarily silly really. ”
    I am most prone to quote the letter to Isaac McPherson, which was written in 1813, and thus was after his experience with the patent office, so you’re claim of focusing on his early writing is ungrounded. BD loves Jefferson’s statement of liberal encouragement, which appears to be from around 1807, although he seems to neglect that encouragement of ingenuity is not limited to patents. I would contend that our education system has contributed greatly to ingenuity, as has funding of science and research.

  14. “Your proffered argument centers around the fact that those with money are able to obtain patent protection.”

    No. Those with money are allowed to keep their intellectual property. Those without money are not allowed to keep their intellectual property.

    “those who can afford to buy property and discriminates against those who don’t have the funds to buy property.”

    No. I don’t want to buy property, I have property which I want to retain ownership. I want to own my own intellectual property.

    To give a real estate analogy, I build a house on my land. The township comes to me and says give us $20,000 or we will confiscated your property and declare it public.

    “That is just about as ridiculous an argument as I have ever heard.”

    Yes, imagine if the township declared my house public property if I didn’t pay $20,000 for each house I built using my own money on my own land. Ridiculous, isn’t it?

    “There is no confiscation of rights.”

    Except for confiscation of patent rights, unless I pay the patent office to rubber stamp my name on my invention. Oh, I forgot they also do 1 hour of prior art research.

    “Perhaps you didn’t have the financial resources to pursue your invention ”

    Yes, I don’t have the financial resources to keep my invention. I either have to pay $20,000, or keep it secret, or turn it over to the public.

    “having the resources to exercise those rights ”

    Thank you for making my point. Patent rights are only granted to those with financial resources.

    “narrow-minded form of class warfare. ”

    No. In a free and capitalist market I would have basic property rights and basic intellectual property rights. Only under a non-free market would my intellectual property be turned over to the state and to the public, except for those who are politically or financially connected.

    “There are plenty of ways for individuals to economically and responsibly pursue patent rights.”

    Can I peruse a patent for free? I would like to put my name on my discovery as allowed under Article 1, Section 8, Clause 8 of the Constitution. As you can put your name on this article without paying the copyright office $20,000, for each and every article.

    “Not working hard and pursuing those options in a fiscally reasonable way and then blaming the system does not describe a problem with the system.”

    I have to work hard to be given the privilege of putting my name on my invention?

  15. Bobby,

    Whether you like it or not, Federalist Paper No. 43 is the only document I’m aware of on the Patent Clause written contemporaneously with the creation and signing of our Constitution. And what is said in the Federalist Papers holds quite a bit of sway with those interpreting our Constitution, including judges and lawyers. Again, i suggest you read Professor Mossof’s article which explains why the Federalist Paper No. 43 says alot about how patent rights were viewed at the time of the creation of our Constitution. Accepting the “Jeffersonian story of patent law” as gospel on what the Patent Clause means (as unfortunately SCOTUS has in Graham v. John Deere Co. and other cases) and how patent rights were view at that time is just accepting “historical fiction.”

  16. EG,
    I have already read the article, which was how I was able to contend that Mossof was trying to milk something out of 43 that wasn’t there. Also, the only thing he really provides evidence of was that there were common interpretations of both natural rights and a utilitarian system. It wouldn’t make it fiction, but rather an incomplete story. He neglects that the language of the Constitution itself, which is the most important thing Madison wrote on the subject, is clearly a utilitarian system.

    Also, you haven’t answered on why you would support a natural rights system over a utilitarian system. The difference between the two only matters when you want to impede progress, either by extending the patent system beyond the point where it is a benefit to the public, or retaining elements that are clearly harmful to the public now. If both the public and individual inventors benefit under the current system, than it would be fine by both perspectives.

  17. Bobby,

    I have already addressed your false distinction between “a natural rights system over a utilitarian system“, and why it is a red herring. Please review the discussions we have had – I do not have the bandwidth to repeat them again now.

  18. OhReally?

    You say: “Those with money are allowed to keep their intellectual property. Those without money are not allowed to keep their intellectual property.”

    100% false. Those without money can keep their intellectual property. There is no confiscation going on. It is not as if President Obama is sending around the secret policy to strip poor of intellectual property rights. What you are complaining about is you can’t afford intellectual property and think that means you are being discriminated against. Truly ridiculous.

    You say: “Patent rights are only granted to those with financial resources.”

    Again false. There are plenty of inventors who take the time to educate themselves and obtain patent rights only having to pay the Patent Office fees. They represent themselves. You are bitching and moaning because you feel entitled.

    You say: “In a free and capitalist market I would have basic property rights and basic intellectual property rights.”

    That is laugh out loud funny! In a truly free market, as you seem to be suggesting by the gist of your entire comment, you would have NO rights. Others could and would simply copy you without consequence.

    You say: “Can I peruse a patent for free? I would like to put my name on my discovery as allowed under Article 1, Section 8, Clause 8 of the Constitution. As you can put your name on this article without paying the copyright office $20,000, for each and every article.”

    First, a copyright costs $45, not $20,000. Second, if you represent yourself you can acquire a patent for 1/10 th of the $20,000 you continue to throw around.

    You either need to grow up, find the resources to acquire meaningful patent rights or do it yourself. But pretending that the government is confiscating your rights or putting a gun to your head to disclose your invention is asinine. The world is full of choices, and you choose to ignore the obvious and make irrational arguments that are 100% false. Your life, but a real crappy way to go through life if you ask me.

    -Gene

  19. I don’t recall that, BD, but you are right in that it doesn’t actually matter. The US is constitutionally bound to a utilitarian system, regardless of whether or not you or others like it.

    However, I find it interesting that EG and other takes such objections to a utilitarian system. If the current US patent system is actually good for the public, than you are going to get the same kind of results regardless of the underlying justification. The places where the difference actually matters (besides internet discussions, of course) is where there is a difference between what is good for the public and what is good for the patentee. However, openly acknowledging that you want a system that is bad for the public is not something easy to do if you want to win over hearts, minds, and people capable of reading the Constitution, so directly admitting that is often avoided. Gene seems to see that copyright law has largely succumb to special interests, and special interests can easily get laws suited for them if they don’t have to at least nominally prove a public benefit, making them the parties most likely to advocate a natural rights argument.

    As for your bandwidth comment, while likely a statement in jest (kudos on no longer beating the dead horse of kool aid, dogma, and blindness. I hope you can keep it up for a while and at least use fresh material now and again) , I must ask if you happen to be an AT&T customer. Even worse, I must ask the question of why bandwidth is a concern if you aren’t engaging in any illegal activities. I’m well aware that it’s quite possible to hit a cap without such behavior, but ISPs often want to suggest that caps will only affect those ‘dirty pirates.’

    Gene,
    Just a quick note. While I’m sure you are aware of this, you technically don’t have to register your copyright to get any kind of protection, and there is no cost. Not registering your copyright will prevent you from getting statutory damages and make things somewhat harder to prove in court, but you do get to save $45.

  20. Bobby,

    I love to diappoint you – see my post on Henry’s new article.

    As for the AT&T line, I am afraid that I do not undertand your intended jest.

  21. Bobby-

    You say: “While I’m sure you are aware of this, you technically don’t have to register your copyright to get any kind of protection, and there is no cost. Not registering your copyright will prevent you from getting statutory damages and make things somewhat harder to prove in court, but you do get to save $45.”

    I really hate to constantly have to explain you are wrong, but as is so frequently the case you are again wrong. Without a copyright you cannot gain access to Federal District Court and the U.S. Federal District Courts have exclusive jurisdiction over copyright matters. So no copyright registration no access to the judicial process. So yes, you can just say your work is copyright and put on a copyright notice and put the C in a circle without registration, but without registration you have no rights that can be enforced. So if you want a copyright that carries no exclusive rights then by all means don’t register and spend the $45.

    Before moving on I will just notice that you haven’t taken issue with any of the history lesson I provided. Instead, you tried to pick a diversion so that you didn’t have to acknowledge you were wrong. Alas, the diversion you picked came back to bite you.

    You really should get a clue before pontificating about things you truly don’t understand.

    -Gene

  22. Alas, the diversion you picked came back to bite you.

    As is often the case. Farm policy, economics, etc. Bobby has a bad habit of thinking his dogma provides a bullet proof vest to reality.

  23. Gene,
    That’s still copyright. There are differences between an unregistered copyright and a registered copyright, and an unregistered copyright is of course much weaker, but an unregistered copyright is still copyright nonetheless, and it’s existence may be enough of a deterrent for some cases.

    “Before moving on I will just notice that you haven’t taken issue with any of the history lesson I provided. ”
    I actually have taken issue with your claim about Madison’s influence of Jefferson. I am not saying what you claim didn’t happen, but I’ve seen nothing to back that up. The reason Jefferson’s mind changed appears to be actually seeing inventions being brought to public usage, and really, that’s a much better story anyway. Also, there doesn’t appear to be a lot of evidence of Madison as the ‘primary champion of patents.’ Given the small amount he’s written about them, it seems if he were the primary champion, the Founding Fathers weren’t enamored with patents at all.

  24. Bobby-

    Look, I am really sick and tired of your nonsense. Why can’t you ever admit when you are wrong?

    You made an incorrect statement about copyrights. You said you could gain access to a court to seek redress without having a registered copyright. That is completely false and if you knew the first thing about copyright law you would know it was false. Nevertheless you said it like it was true. I called you out on it and now you want to try and preserve your dignity (apparently) by saying unregistered copyrights have rights, albeit weaker than a registered copyright. That is AGAIN false. An unregistered copyright provides no right of exclusion. Only a registered copyright provides a right of exclusion.

    You also say: “I actually have taken issue with your claim about Madison’s influence of Jefferson. I am not saying what you claim didn’t happen, but I’ve seen nothing to back that up.”

    Then obviously you haven’t done any research at all into the issue.

    You say: ” it seems if he were the primary champion, the Founding Fathers weren’t enamored with patents at all.”

    That is perhaps that most ridiculous statement you have ever made. An enormously short document and the intellectual property clause is found granting power to Congress and is embedded in the Constitution after the right of Congress to establish a Post Office and the right of Congress to establish Courts inferior to the Supreme Court. So the patent power comes before the power to establish Courts and you think that means the Founding Fathers weren’t enamored with patents at all?

    Now some friendly advice. Your shoot at the hip approach to commenting doesn’t work for you. It is almost unbelievable, but you are actually never right, even when what is being discussed is of an undisputed factual nature or matter of well established history. It boggles the mind how someone could be wrong 100% of the time even shooting from the hip, yet you are. So either you severely need to research things before you make a fool of yourself and proof you know nothing, or you know better and are just being a pain. I am starting to believe the later. Being wrong 100% of the time is at least as difficult as being correct 100% of the time.

    Stop with the games or go elsewhere with your nonsense.

    -Gene

  25. BD-

    Bobby can take his vest and go elsewhere as far as I’m concerned. It is impossible for anyone to be wrong as often as he is while still being sane. The game is over.

    -Gene

  26. “You said you could gain access to a court to seek redress without having a registered copyright. ”
    I said nothing about gaining access to a court, and my only statement on redress is that an unregistered copyright is NOT eligible for statutory damages. I said that a lack of a registered copyright does not equate to a complete lack of protection. That legal recourse could eventually be sought is a kind of protection that can dissuade unauthorized copying, and is a protection that is not similarly enjoyed by inventors, who must act very quickly to get any kind of protection or lose all opportunities.

    “Then obviously you haven’t done any research at all into the issue. ”
    I have asked you for a further source, and you have declined to offer one so far. Jefferson’s first positive statement about patents, “The issue for patents for new discovers has given a spring to invention beyond my conception” appears to be driven by his firsthand experience in the patent office, not conversation with Madison. Again, if you know of further writings, please inform me. The only thing I’ve found was the 1788 letter to Jefferson Mossof mentioned stating “With regard to monopolies, they are justly classed among the greatest nuisances in Government. But is it clear that, as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?.” While perhaps more favorable than Jefferson’s view at the time, it’s hardly affirmative of a clear faith in such a system, just a lack of clear distrust, and the potential utilitarian justification Madison gives is downright Jeffersonian. Also, let me be clear that I am not outright denying your statement, just claiming that I’ve seen no real evidence of it, and do not know where I would find further evidence. It’s quite possible that Madison and Jefferson privately discussed patents absent any surviving records.

    “That is perhaps that most ridiculous statement you have ever made. An enormously short document and the intellectual property clause is found granting power to Congress and is embedded in the Constitution after the right of Congress to establish a Post Office and the right of Congress to establish Courts inferior to the Supreme Court. So the patent power comes before the power to establish Courts and you think that means the Founding Fathers weren’t enamored with patents at all? ”
    I don’t think the order of clauses can really imply importance in a reliable manner. For example, the establishing of Post Offices is before the establishing of inferior courts, but I wouldn’t cite that as evidence of their relative importance. Giving Congress the option to have a patent system doesn’t mean that the founding fathers were enamored with it, just that they thought it was a choice that they ought to keep open, much like declarations of war. Also, the clause itself is quite restrictive, suggesting but not proving that some degree of mistrust for the institution might have existed, at least among some.

    More to the point I was making, the records of Madison saying nice things about patents or even anything about patents is rather brief. If he championed patents more than anyone else, than it would appear that that there was very little championing of patents by the founding fathers, and his advocacy would appear to be roughly equivalent to a handful of sound bites. My statement is more focused upon the peculiar choice of Madison as a strong patent advocate as opposed to a statement on the general view of the founding fathers.

  27. Bobby,

    You do not seem to grasp the point of what Gene is telling you. Your days of “The law really says “X” and I know because I slept at a Holiday Inn last night” are numbered.

    Time and again your refusal to understand the basics of law and your insistence on making up your own selected version based on your dogma fails. You continue to see only what you want to see. As yet another example, you fail to see the fact that your idealized view of Franklin actually makes the point that the actual patent system is not what you think it is (in fact, quite the opposite). For if your view were correct, then Franklin’s view would be the law. You do recognize that it is not, right?

    Now, your reliance on Switzerland is yet another example of your fallacious reasoning. Implying as you do that the only reason for the switch was a cabel of pressure paints you in the “its a conspiracy” crowd. Clearly, if you were correct and your castle view was accurate, then Switzerland would have been able to convince first those close at hand and then the rest of the world that having a patent system simply wasn’t needed for an advanced society. It seems that you are incapable of learning from explicit points of failure in your Dogma as applied in the real world. As they say, those who do not learn from their mistakes repeat them, and this is witnessed by your repeated postings here that simply do not wash. Staying in your castle tower as that tower pitches to and fro with the foundation of shifting sands is not something a sane person is likely to do.

    As for castels, foundations, kitty litter, dogma and blindness, I use the same literay tools because they apply so aptly. You want to have this castle, but you have no true foundation. You misapply basics such as the Quid Pro Quo (a wholy unstainable perversion) and refuse to accept what those basics really are.

    It is one thing to have a viewpoint. It is quite another to pervert what is known in order to support that viewpoint. I believe that you are fast approaching the end of your leash here with your continued perversions and steadfast refusal to open your eyes to what the basics of law tell you. I am happy for you that you stayed at a Holiday Inn, but that is no substitute for actual legal understanding, kitty litter will never make an appropriate foundation for a castle.

    Just as a government will condemn and dismantle a dangerous edifice, you have been served notice that your castle is a dangerous liability – shore up your foundation or the city will forcibly take your castle down.

  28. BD,
    I woulkd appreciate it if you qould quit trying to interpret what I say.

    “As yet another example, you fail to see the fact that your idealized view of Franklin actually makes the point that the actual patent system is not what you think it is (in fact, quite the opposite). For if your view were correct, then Franklin’s view would be the law. You do recognize that it is not, right?”
    I argued that Franklin basically takes a viewpoint similar to many free culture advocates today. Said advocates are often not opposed to a utilitarian system. Richard Stallman, for example, has at times said that he doesn’t take issue with a copyright and patent system that is actually utilitarian. However, he does take issue with the natural rights argument. Likewise, I contend that Franklin’s position would likely be about the same. Had he understood the wording of the patent clause to be acknowledging an inventor’s natural right, he would have been likely to debate it, but we know that the patent clause was not debated. What I was implying was that since Franklin probably would have debated a natural right system and the patent clause was not debated, it was obviously not describing a natural right system, but a utilitarian one. As I’ve said before, the wording is CLEARLY about a utilitarian system, even if your dogma blinds you to that reality.

    As for Switzerland, we can debate the reasons why Switzerland changed from no patents to patents, but Switerland prior to patents (1888 appears to be when the first Swiss patent law came into affect, although it was exceptionally limited compared to other nations,and even the next law was limited as well) would be considered an advanced society for its time, and thus I have offered you an example that fits your criteria. That pre-1888 Switzerland had no patents is true, so the only counterargument is that pre-1988 Switzerland was not an advanced society, which would be quite insulting to Alfred Nobel. I previously cited Switzerland in comparison to other 19th century countries that were reasonably well controlled for other factors (unlike comparisons of the US to countries like North Korea or Somalia that I’ve encountered here and elsewhere), and Switzerland did quite well in comparison. If you don’t want to bother looking for it in our conversations, it’s also cited in the Against Intellectual Monopoly book I suggested that you read.

    We also have clear evidence that countries with IP have put political pressure on countries without IP or with weaker IP, and I’ve already explained why they would do so. That doesn’t mean all changes to IP laws are driven by this, but it’s something we must be eternally vigilant about and ought to do our best to stop, if only for the sake of being able to have some good natural experiments to fuel our debate.

  29. Bobby,

    As for Switzerland, we can debate…but

    No. We cannot debate when you are blind to everything that does not get through the filter of your dogma.

    Once you start to acknowledge even the mere existence of such, once you start understanding the basics and shore up your foundation, then – and only then – can a debate be undertaken.

    I contend that Franklin’s position would likely be about the same. Had he understood the wording of the patent clause to be acknowledging an inventor’s natural right, he would have been likely to debate it

    Again – you are simply incorrect and wanting to read history only in the view of your dogma.

    The plain fact is that Franklin’s professed views and your revisionist “had he understood” perversion simply do not wash. Think about it: Do you really think that Franklin was unaware of the context of the day? You need to re read the Mossoff article again – this time without the Dogma Blinders.

    As you love to quote Jefferson and emphasize the letter to Isaac McPherson, which was written in 1813, then you should appreciate the even later dated letter to Henry Lee:

    As Jefferson wrote in 1825, the Declaration of Independence “was intended to be an expression of the American mind” and “[a]ll its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.”

    You are much too eager to make the discussion an all-or-nothing Utility-vs-Natural Rights argument. Such is a false premise. Just more kitty litter sands under your castle.

  30. “No. We cannot debate when you are blind to everything that does not get through the filter of your dogma.”
    I meant that it is something debatable more than it is something we are personally capable of debating, and that the reasons for Switerland’s changes are not relevant for countering your claim of no examples because I provided an example. You ignored that Switzerland was once an advanced society without patents, which proved your claim wrong. So, do you admit that I have countered you, or are you going to try and weasel your way out of this one with something else tangential to the real conversation?

    “Do you really think that Franklin was unaware of the context of the day? ”
    I think Franklin was able to read. The Constitution clearly states that a US patent system is optional to have, utilitarian, and inherently limited in duration. Even if popular opinion was almost entirely focused on a natural rights view of patents, the patent clause does not support such a system.

    “You are much too eager to make the discussion an all-or-nothing Utility-vs-Natural Rights argument.”
    My focus is on Utility vs Natural rights in regards to the US Constitution, and there it is a real premise, and is stated quite clearly.

  31. Bobby,

    No need to weasel as your counter example failled to be applied to my full test – that such a counter example would not only exist, but the fruits of that example would supplant those *such inferior* system with patents.

    You have to descend into the conspiracy theory land in order to come up with some rationale for your vaunted dogma’s failure. Why is that?

    I think Franklin was able to read. The Constitution clearly states that a US patent system is optional to have, utilitarian, and inherently limited in duration. Even if popular opinion was almost entirely focused on a natural rights view of patents, the patent clause does not support such a system.

    Completely and utterly false. You have not been paying attention. Yet again you ignore the reality of history because that history does not fit into your Dogma, hence you cannot see it. It’s funny here that you do not comment on the later Jefferson quote clearly stating that the philosphy of Locke was not only alive and well but integrated into the constitution and our legal system.

    Why do you think that you fail to see this?

    and there it is a real premise, and is stated quite clearly.

    Just because you state it, does not make it real – once again, contemplate Jefferson’s 1825 quote. Then get back to me.

  32. “No need to weasel as your counter example failled to be applied to my full test – that such a counter example would not only exist, but the fruits of that example would supplant those *such inferior* system with patents.”
    the claim that there were no examples was a claim unto itself, so please don’t move the goalposts. That was all that Gene specifically echoed. I have not stated the extent to which I contend a patent system is inferior, so your mention of ‘such inferior’ is irrelevant, and being a superior system in regards to efficiency doesn’t mean that political leaders are wise, or that other factors don’t come into play.

    The US had a much weaker copyright system, and was clearly dominant in at least certain parts of the film and music industries. However, more and more, our copyright system has become increasingly akin to that of European countries, most notably in changes to copyright duration. Do you have a rational explanation for why the US would through internal force adopt elements from an exterior system that the given evidence suggested was inferior?

    “You have to descend into the conspiracy theory land in order to come up with some rationale for your vaunted dogma’s failure. Why is that?”
    The evidence of a German threat of trade sanctions is quite real, and we have quite a few examples of recent evidence about similar behavior from the US. It’s also worth noting that good, controlled evidence on IP is not particularly easy to find, especially since other factors can play a much larger role, so even if one concludes the primary impetus for the changes was internal, it doesn’t indicate that the choice was based the wisdom of analyzing good evidence.

    “It’s funny here that you do not comment on the later Jefferson quote clearly stating that the philosphy of Locke was not only alive and well but integrated into the constitution and our legal system.”
    You say that as if it’s meaningful to the conversation at hand. Locke held that there were natural rights, but that does mean that he held that patents were an example of a natural right. Even if one contends he did, that doesn’t mean Jefferson held that particular element to be accurate.

    “Just because you state it, does not make it real – once again, contemplate Jefferson’s 1825 quote. Then get back to me.”
    Jefferson’s quote doesn’t change the wording on the patent Clause, which you, Mossof, and others seem to continually neglect. As I’ve said time and time again, the power actually given is to ‘promote progress,’ with the grant of patents and copyright for limited times being the means to accomplish that utilitarian task. The specified ‘limited times’ means that the rights conveyed in a patent or copyright MUST be at some point alienated from the inventor or author, while natural rights are those from which one must NOT be alienated.

  33. so please don’t move the goalposts.

    I moved no goalposts – my goal posts may have been different than Gene’s, but my goalposts have not moved. You still have failed to carry your point against what I have (consistently) stated.

    If you want to talk about “moving goalposts, lets look at your response to the 1825 quote and Mossof:

    Jefferson’s quote doesn’t change the wording on the patent Clause, which you, Mossof, and others seem to continually neglect.

    No one – and I repeat no one – has neglected the wording of the patent clause. What has been neglected – through the blindness of your dogma – is the understanding of the very context of those same words of the patent clause. As I have mentioned above, You filter and cannot see that which you do not want to see. Your continued “I slept at a Holiday Inn last night” rendition of reading the constitution and flailing efforts to make this an all or nothing – Lockean or Utilitarian philosphy battle miss the actual historical points. This is not an all or nothing battle of philosphy. You keep climbing to the tower of your castle, no matter how much it sways to and fro due to a lack of foundation. You claim to see something when your eyes are closed – what you see is only your imaginary dogma – what you want to see. You cannot comprehend that which you refuse to acknowledge. This is why the analogy of blindness is so fitting for you.

    I will ask again, quite simply – square what Jefferson clearly indicates as of 1825 – that Lockean views were integrated into the constitution – with your dogma.

    You will not because you cannot.

  34. “You still have failed to carry your point against what I have (consistently) stated.”
    I chose to attack that specific point. It was a complete sentence and a complete thought that was central to your argument as a whole, and you’ve attacked me on much smaller and less relevant tangents in the past. A lack of a patent system does not in and of itself result in a lack of an advanced society.

    “No one – and I repeat no one – has neglected the wording of the patent clause. What has been neglected – through the blindness of your dogma – is the understanding of the very context of those same words of the patent clause”
    If you aren’t neglecting it, you lack basic reading comprehension. Context can’t subvert the very clear meaning given, and the context we have mostly points to a utilitarian system anyway. How on Earth do you conceive giving a public benefit (to promote the progress) by granting rights that must at some point be alienated from an individual (limited times) as part of a natural, inalienable right?

    “ou filter and cannot see that which you do not want to see. Your continued “I slept at a Holiday Inn last night” rendition of reading the constitution and flailing efforts to make this an all or nothing – Lockean or Utilitarian philosphy battle miss the actual historical points.”
    Despite your wishes, Lockean philosophy does not mean patents are natural rights. I am not contesting Locke here, I am contesting the natural rights viewpoint of patents.

    “I will ask again, quite simply – square what Jefferson clearly indicates as of 1825 – that Lockean views were integrated into the constitution – with your dogma.”
    Jefferson was actually talking about the Declaration of Independence. That aside, as I’ve already said, Lockean views don’t mean that patents are a natural right, and even if you contend they did, that doesn’t mean that the entirety of Lockean views are part of the Constitution or Declaration of Independence.

  35. you lack basic reading comprehension.

    Says the person that ignores the basics of law.

    Bobby, you have zero credibility to say that statement. You do know what “context” actually means, do you not? You do realize that staying at a Holiday Inn last night does not really give you the benefit of understanding historical context, do you not? You do realize that dismissing context, without understanding that context places you in the land of intentional ignorance, do you not?

    Why do you insist on an entirety view of Lockean inclusion? I continue to press that this is not an all or nothing philosophical battle, and you continue to press for one. Do you not get that I am not even arguing that point because that point is a red herring? I have been over this with you time and again. Yet you keep bumping into the exact same walls.

    Open your eyes and you can stop bumping into the walls.

  36. BD,
    I am not ignoring context, but none of the given context changes the meanings of the words from my stated interpretation, despite your apparent wishes otherwise. The wording forcefully hammers home that it is an optional utilitarian system and that it is not an inalienable right for inventors.

    I’m also not quite sure why you keep wanting to bring up Locke, either. I have an idea and find the basis for that idea to be ungrounded, but I’ll leave you to stating it.

  37. from my stated interpretation,

    Bump

  38. [...] was actually the second Constitutional article I wrote in as many weeks. One week earlier I wrote Patents, Copyrights and the Constitution, Perfect Together. Hal’s newsletter, sent out with the subject “naive and wholly incorrect [...]