Posts Tagged: "ip clause"

The new reality is that content creators are getting squeezed all around. Increasingly many want things to be free and don’t care whether they copy a public domain work or whether it is something that is copyrighted. They don’t see it as wrong, but this makes it difficult to make a living for content creators. Truthfully, for some content creators it is darn near impossible. Yet everywhere you turn content creators are getting the short end of the stick. If it isn’t blatant and wanton copyright infringement online (which I have to deal with all the time), it is authors getting pennies on the dollar for eBooks or musicians who worked with Pandora to help the company get off the ground taken to Congress so the U.S. government can step in and take from creators for the benefit of the company they helped create. Even the name of the bill supported by Pandora — the Internet Radio Fairness Act — is insulting and misleading.

How anyone with even the most fundamental understand of property rights and economics could say that infringing a patent does not result in a tangible injury is beyond me. Is he unfamiliar with the concept and real world practice of licensing patents? With all due respect to Judge Posner, a right without the ability to obtain recourse for its trampling is no right at all. His analysis is wrong and frankly rather amateurish. It carries the stench of a anti-patent ideologue who doesn’t understand the most fundamental principles associated with legitimate, arms-length negotiations that result in a transfer of rights. Judge Posner’s damage analysis has to be a dream come true for those who use the bullying tactic of efficient infringement to make the business decision to trample rights rather than legitimately acquire them.

Mr. Kessler believes that Mr. Madison did not understand what he was doing or, at best, did not foresee the expense that patent litigation would involve in the 21st century. In fact, the founding fathers knew exactly what they were doing when writing the intellectual property clause into the U.S. Constitution. They were protecting the individual from the overwhelming power of large entities. They were enacting the very principles of American society for which we fought the Revolutionary War. Since 1790 the U.S. patent system has contributed to America becoming the most innovative society in the history of the world. Fundamentally changing the system in the ways suggested by Mr. Kessler would stifle that innovation.

This is a good time to review the implications of this case, but an even better time to look into the origins and constitutionality of the Non-obviousness requirement. You might object that the jurisprudence of the non-obviousness requirement is so well established that nothing can be learned from this sort of analysis. I disagree. Patent law is under assault by the Supreme Court, the media, the ‘information wants to be free’ crowd, multinational corporations, and the economics profession. If we attempt to explain patent law based on the decisions of people who never passed the patent bar, never wrote a patent, never prosecuted a patent, and do not have a technical background, we are doomed. We need to define patent law as a natural law/right based on certain fundamental truths. This is the only way to get the non-patent attorney judge or the general public to understand patent law and understand that it represents justice.

To all those who can read the Constitution it has to be clear that the Supreme Court’s decision in Golan v. Holder is absurd. It is a ridiculous decision that lacks intellectual honesty and defies common sense. Further, the facts of this case provide ample ground for the suspicions of many who wonder why it is that the United States is so interested in losing its identity and compromising Constitutional principles in order to facilitate some ill conceived plan to join the world community. Simply stated, treaties and international law cannot trump the Constitution. With all due respect to the six Justices who ruled in favor of stripping works from the public domain, the Constitution does not support this decision and any attempts to argue to the contrary are insulting and show a contemptuous understanding of the history and role of intellectual property in America.

The effort to shoehorn foreign patent priority concepts and torture a well-developed 200 year-old American patent system that has a proven record as the best in the world into foreign structures that are inconsistent with the American Constitution and its laws is a futile effort that would likely be met with successful challenge on constitutional grounds. The illusory “harmonization” goal with no demonstrated tangible benefits compared to the existing system does not justify embarking on a risky legal adventure that will destabilize the American patent system and will doom it to decades of economically taxing legal uncertainty.

Currently, the term for copyright protection is life of the author plus 70 years. To put this into perspective for you, Steamboat Willie initially aired in 1928. The copyright is ruled by the 1909 Act and has a shorter term of protection that the current scheme. Steamboat Willie is due to go into the public domain in 2023 unless Congress extends the copyright term again. I’m not sure if nearly one hundred years is a limited term (almost everybody alive during the initial air date will be dead before they can use it), but I guess Congress and Disney think so.

Typically I let what Hal writes slide off my back because I don’t take him seriously. Having said that, the other day he did one of his trademark hatchet jobs on an article I wrote titled The Constitutional Underpinnings of Patent Law This 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 understandings,” grossly misrepresented my writings, and was incorrect on the law in places as well. That being the case, and given the particularly prickly and fallacious subject heading, I thought I might set the record straight. I think it is also time to challenge Hal to a debate so he will either put up or shut up.