“Starting first with the Napster generation and the view that sharing copyrighted music is somehow an unalienable right in and of itself, the disregard for creators not only transcended the public but has transcended all the way to the Supreme Court itself.”
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” reads the preamble to the Declaration of Independence, a document authored by Thomas Jefferson, edited by Benjamin Franklin, and signed by some 56 Congressional delegates.
Over the weekend, we celebrated the 244th anniversary of the signing of the Declaration of Independence, and in light of everything that has happened over the second quarter of 2020 it is perhaps a good time to reflect.
So much of the second quarter of 2020 has been defined by two major events— the unnecessary and unacceptable killing of George Floyd and COVID-19. In the coming weeks and months there will be much written and debated by experts in the field of social justice, police reform and government relating to just about every aspect of the events relating to the death of Mr. Floyd. As those conversations ensue, and reforms are brought to bear, as more fully explained below, America should also take this opportunity to have a broader conversation about private property rights— real, personal and intangible. That is where our expertise lies, and we will attempt to facilitate that conversation.
Happiness Instead of Property
John Locke greatly influenced the Founding Fathers, including Thomas Jefferson. According to Locke, the legitimate basis of government is to protect inalienable natural rights each individual possesses through birth. Among these unalienable natural rights are “life, liberty, and property.” The use of the term “pursuit of happiness” instead of Locke’s reference to “property” was intentional, not because it was intended to diminish the desire to view property as an unalienable right, but because the “pursuit of happiness” was viewed as broader and intended to represent the viewpoint that the control of one’s own destiny – whether relating to tranquility, economics, or political participation – is an unalienable right.
A Lack of Respect for Private Property Rights
Over the last six weeks, there have been large protests in the great American tradition of exercising the right to free speech, assembly and participation in petitioning government for change. Unfortunately, late into the evening in at least some American cities, long after peaceful protesters had gone, a few agitators have shown a disregard for private property rights.
Much of what has gone on, even late into the evening, can be and is defended by some as part of any rebellion. And even Thomas Jefferson spoke fondly of an “honourably conducted” rebellion every 20 years or so. But the opportunistic looting by a few speaks to a deeper- rooted belief structure.
Those familiar with intellectual property and the plight of creators well know this belief structure. The disregard for the intangible property rights has become cliché over the last generation, and increasingly so over the last decade. And it is not just inventors who find their innovations appropriated by large multinational corporations. The mean income of authors in America is very near the poverty line, with many living on welfare.
While talking about intellectual property at a time like this may seem inapt, the mindset that allows one to ignore the rights of another cannot be cabined and shouldn’t be ignored. In fact, this mindset and viewpoint has precisely and specifically been ignored for too long. As Martin Luther King, Jr. condemned rioting, he also acknowledged that “a riot is the language of the unheard.”
A Quick History of the Demise of Respect for Intangible Property
Starting first with the Napster generation and the view that sharing copyrighted music is somehow an unalienable right in and of itself, the disregard for creators not only transcended the public but has transcended all the way to the Supreme Court itself.
Witness these curiosities, for which we have the Supreme Court to thank:
- Patent owners have no right to an injunction if they are victorious in a patent litigation despite the fact that a patent is supposed to be an exclusive right. See eBay v. MercExchange, 547 U.S. 388 (2006).
- Despite the fact that the Patent Act passed by Congress says patents are to be treated equivalent to private property, a 2018 ruling said they were nothing more than a “government franchise.” See Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 138 S.Ct. 1365 (2018).
- The Administrative tribunal charged with taking away patent rights upon petition by another can, if they choose, ignore the statute of limitations and institute a challenge in contravention of the statute and not even the Supreme Court can stop a rogue panel clearly operating outside the mandatory dictates of the statute. See Thryv, Inc. v. Click-to-Call, LP, 140 S.Ct. 1367 (2020).
Exactly how can one even pretend that a patent is an exclusive right without the right to exclude? How can one pretend that a patent is a property right, as the statute says, when the Supreme Court has ruled it is merely a “government franchise”? How can anyone have any belief that even their government franchise is secure if the Administrative tribunal charged with reviewing patent rights can ignore the statute of limitations without consequence?
The Die is Cast with Eminent Domain
Those familiar with the recent evolution of the United States Supreme Court’s eminent domain jurisprudence know all too well the whimsical nature of how the High Court treats property rights; even sacrosanct property rights in the form of real property. Decisions over the last generation relating to eminent domain should make everyone wonder about whether private property rights really exist at all. If the government wants someone else to have your property, they can take it from you and give it to another private citizen under the guise of eminent domain. See Kelo v. City of New London, 545 U.S. 469 (2005).
Time to Confront Critical Questions
The shocking disregard for private property in America is as alarming as it was predictable. It has been brewing for some time. What does it mean? Where is it coming from? What does it portend for the future? Time will tell, but these are critically important questions for our consideration. These questions should not be swept under the rug and ignored as if everything is fine. Everything is not fine. Too many in our society view the property rights of others, whether real, personal or intangible, as inconveniences.
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