> The purpose it was originally intended to be used for doesn't make sense in a world where most new technology is just software, and software is incredibly easy to copy and duplicate.
The very first patent was to duplicate an existing process (the loom) and have a monopoly to produce it.
I keep hearing this argument from patent proponents, but patents have never in their history been ostensibly for good.
The Constitution requires that Congress setup laws for both copyright and patent, for the good of the nation. Patents were always intended for the overall wellbeing of the nation. That's not to say that is what has always been achieved by the patent system, but it's not some sort of conspiracy. If anything, in history, they were always OSTENSIBLY for good, but perhaps ACTUALLY bad. So I find your statement to be A) historically and factually inaccurate B) literally incorrect given your usage of ostensibly.
> The Constitution requires that Congress setup laws for both copyright and patent
No it doesn't, it grants them the power but it doesn't specify they have to do it.
“The Congress shall have 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….”
There is a big difference between having a power and being forced to use it.
I don't think that's a great reading of congress' enumerated powers. The shall refers to the powers being powers that can be used when appropriate, to achieve the intended goal of the power. Must language, here, would imply a constant duty to use each power.
My reading is that Congress has an OBLIGATION to promote the arts and sciences, and has the power to use copyright and patent law to achieve those goals as congress sees fit.
By your very logic, does that mean the second enumerated power "2. To borrow money on the credit of the United States;" means that we are also obligated to be in debt? Would it be unconstitutional to pay down the debt of the nation?
Additionally, even if Congress had an obligation to grant intellectual property rights, couldn't they simply grant patents for a term of 24 hours? or 15 seconds?
From what I've read (c.f. Clinton v. City of New York 1998), Congress can decline to use a power, but it cannot grant that power to another branch of government.
IANAL, but the fact that it says nothing about an obligation (I don't even believe it's implied, but I'm not a historical legal scholar) leads me to believe you're inserting your own bias.
One thought would be, if there was no duty implied in the specific enumeration of this power and it's implied goal, then why wouldn't it just be part of the necessary and proper clause?
If you think that you probably shouldn't deal with a lot of statutes. For what it's worth, despite your contentions, I don't at all believe it is confusing. But I'm a litigator and I went to law school.
If you think the necessary and proper clause can be read to authorize patents, you probably have a very different idea of how to interpret the constitution than the drafters of the constitution.
Agree with this. In administrative law (the principles of which apply here) certain words have technical interpretations that are very different from the colloquial meaning. "Shall" is one of those words - and I too would interpret this as an obligation.
But it doesn't say that "Congress shall promote the progress..." it says "Congress shall have the power to promote the progress..."
If the framers wanted to require that Congress do this stuff, why insert "have the power to" unnecessarily? There's no need for that phrase.
As another point against this being an obligation, if you look at the list of enumerated powers[0], you'll see some that are clearly not obligations. Congress doesn't have to borrow money. They don't have to maintain a navy. They didn't have to establish post offices. They didn't have to create a federal court system. (Granted, it makes a lot of sense for them to do many of these things, but it feels wrong to think that they're required to.)
This area of law is very tricky. As I've stated above, the technical (i.e., legal) interpretation can be quite different from how a layperson would understand the same words.
The basic idea here is that an authority (e.g., Congress) that has been given a specific power (e.g., declaring war) is obligated to exercise that power where appropriate.
Do note the specific phrasing above: if there is a situation in which exercising that power is the appropriate course of action, then that power must be exercised. The authority cannot choose not to exercise the power in such a situation.
So, Congress doesn't have to declare war for the sake of declaring war. However, if there is an existential military threat to the USA (e.g., aggression by the Japanese Empire in WW2) you could argue that Congress is obligated to declare war, as this would be an appropriate situation to exercise that power.
Of course, the above explanation is very simplistic. There can be specific wordings that clarify how much discretion that authority has; there may be case law pertinent to that area; and whether a given situation mandates "appropriate" exercise of a given power is never a black-and-white decision.
That cuts both ways, though. It would be pretty easy to argue that it is not the "appropriate course of action" to implement the copyright or patent system in the way we have, and that, indeed, the "appropriate course of action" is to have minimal -- or even no -- protections.
That's not the reading I'm arguing for. The reading I'm arguing for is that it requires Congress to declare war when it is appropriate for Congress to do so
The Framers were skeptical of enabling government to give out patent and copyright monopoly grants. Jefferson wrote:
Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.
It is notable that patent and copyright are not natural rights. At no time was it assumed that people have such rights, nor that government, without explicit authorization could grant such limited term monopolies. Calling these monopolies "good" is definitely not uncontested, nor was it ever.
It's true some of the founders were skeptical, I never said otherwise and I never said it was "uncontested. What I said was that it's inclusion in the Constitution is for a clear reason, whether or not the reasoning is valid is a different debate.
As I pointed out, the constitution grants congress the EXPLICIT AUTHORIZATION you refer to, for the very purpose of promoting the PROGRESS of the arts and sciences.
I guess you think that the promotion of the progress of arts and sciences is not inherently a GOOD thing, but I'd disagree and I think the implied reasoning behind it's inclusion is entirely self-evident.
Does the current set of systems promote the progress of "science" and "useful arts" as they would have been known by those signing those laws many lifetimes ago?
From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.
Thus it is very reasonable to ask: Is the behavior we see from IBM in this news story promoting the progress of "science" and/or "useful arts"? Is the behavior of industry overall with respect to these tools doing more good or more harm?
It seems like you don't fundamentally get the point...
The intent of the patent systems != what the patent system achieves
What I described to you, that you disagreed with was the intent of the patent system. If you want to debate what the patent system achieves, it's a much more complicated question.
It is substantiated by the text of the Constitution itself.
From what I remember of other parts of the constitution and amendments offhand they generally don't include an explicit directive about why something is there. It's extremely implicit as an often obvious effect of what the law expressly allows or forbids.
They generally don't. And therefore the statement of intent for this particular clause should be given more weight, not less.
You cut out the very next sentence which describes the element that I am claiming is unsubstantiated.
Though you do understand the further elaboration of why I too feel it is __extremely__ important that there is a clause about why this power is reserved to Congress and a described intent / limit within which that power is to be used.
Unfortunately this clause was specifically litigated and we lost.
More specifically, can Congress achieve unlimited terms with regular copyright extensions to existing copyright? https://en.wikipedia.org/wiki/Eldred_v._Ashcroft ruled that they can. However their next attempt to extend has so far failed.
We will find out in 2024 whether they get it together, or whether Mickey Mouse enters the public domain after all...like it should have done in 1984. (That was the maximum that could have been expected when Steamboat Willie was released.)
I still believe that's wrong, but a re-do now would be pointless. I doubt anyone within the next few decades will put someone for the people, rather than for the rich people and corporations, on the supreme court. There's a lot of corruption (money/influence) everywhere that needs to be cleaned up first.
"Framers" is more correct. Not all the Founding Fathers participated in authoring the constitution.
Secondly, an explicit reason implies a condition: Is current patent law actually fit for the stated purpose?
Lastly, another comment here refers to the language of "amendments," presumably the Bill of Rights. The Copyright Clause is a clause, not an amendment, and not part of the BoR.
The Framers also actively supported and participated in the slavery trade, believing it was perfectly reasonable and rational to own people as property.
The intellectual property system may have been intended as a force for good. However, it's gotten to the point where everyone knows how to abuse the system and get away with it. There is no reason for anyone to recognize it as a legitimate.
Companies file deliberately vague all-encompassing patents that are very hard to understand and pretty much useless for the purpose of educating the public and advancing the state of the art. Patents are merely weapons to be used against competitors. Companies file patents despite the existence of prior art and not only are they granted by the patent office but they're also allowed to stand uncontested due to the prohibitively expensive nature of patent litigation.
Disney and its copyright industry friends lobbied the government and successfully cheated the public out of its public domain rights by extending the duration of copyright to ludicrous lengths. If that's not criminal conspiracy, I don't know what is. YouTube and the copyright industry cheat people out of their fair use rights every single day.
It's weird that we expect the law to be perfect yet we don't expect that of other things. I think you make a lot of valid points. However, I think you miss the forest for the trees. The point is, if you don't like this system, another one would need to be put in its stead. Short of any ideas how that would work, I'm skeptical of the claim that these laws are illegitimate. I guess you don't think we should respect criminal law either? Should we not put any white collar criminals away at all because so many go free? It's an absurd argument that you are making, ultimately.
You can of course have any opinion you want, but at least present the actual rational for why patents exist. Let me attempt to state it, whether you agree with it or not.
A company may invent a mechanism or process which is better for its intended use than what came before. Sometimes it takes a lot of money and time and it doesn't always work. In the case of a mechanism, once it is sold, competitors could take it apart and reap the benefits without having expended the money and effort to create something new. If patents were killed off, it would discourage people and companies from making those investments. It has varied over the centuries, but currently a patent gives a 20 year time limited "monopoly" on the thing invented.
In the case of a process (vs a mechanism), without patents, a company is highly motivated to keep the process a trade secret. Even with patents a company may prefer to take that route. What do patents offer here? In exchange for disclosing the process, the company is granted that monopoly. In theory disclosing the process will spur the next round of improvements and help the system.
The problem isn't necessarily patents, but the process. Patent examiners are not paid all that well and literally have minutes to research and approve or deny a patent. They need to crank through multiple patent applications a day. And companies abuse the system. Secondly, the practice in patent law is to write the patents in such a way as to disclose as little as possible and claim as much as possible using obtuse language. If you read really old patents an ordinary person could understand most of them. Today I can read a patent in a domain I'm expert in and it is very hard to follow.
There should be some penalty for filing obvious patents, and part of the penalty would be to pay for for more patent examiners, and to pay the legal costs of the challenging party.
The first US patent was for a method of making potash, for fertilizer.
The early US loom patents are particularly ironic as they were “stolen” from the British design rather than actually invented, in violation of British law. The same thing applied to a whole bunch of other early technologies - the patents existed to encourage stealing other peoples ideas and hard work then claiming it as your own.
If patents had a requirement that they must be licensed under "reasonable" terms (i.e. if brought to court you can argue that the license was designed to price out or discourage competitors) then I'm totally in support of them since it's supposed to be a reward for sharing your design with the world rather than keeping it a trade secret.
Well, let's say you don't successfully negotiate over licensing terms and the other side continues anyway. When you sue, you will not be awarded damages more than what a reasonable royalty would be. Here, treble damages for willful infringement act as a pressure for actors to accept fair licensing terms. So the point being: you can't really use your patent to force unfair licensing terms because in the end a court will never give you more than a reasonable license would result in.
The very first patent was to duplicate an existing process (the loom) and have a monopoly to produce it.
I keep hearing this argument from patent proponents, but patents have never in their history been ostensibly for good.