Professor Bell provides his view on “Intellectual Privileges” rather than “Intellectual Property.” Although Bell’s ideas are directed at copyright law, it does not take an inventive step to to cross them over into patent law policy.
Bell’s book fully covers the topic from his perspective: http://mercatus.org/intellectualprivilege/Intellectual-Privilege.html.
HT to Stephan Kinsella
Tom bell’s explanation is logically flawed..why?
All forms of property rights are government granted rights including your rights to own your house & other physical items, eg a Car. Under a communist regime such rights may cease to exist.
I feel Tom’s goal may be to downgrade the merits of IP by asserting intellectual property as a form of intangible and less significant type of property compare to a house or a block of land.
Bingo!
Nothing but semantic propaganda reminiscent of Orwellian doublespeak and redefining words so that a New Order can be ushered in (while misdirecting what the existing order actually is).
“Nothing but semantic propaganda reminiscent of Orwellian doublespeak and redefining words so that a New Order can be ushered in”
It isn’t quite doublespeak, but yes, language may be evolving so that we can differentiate between different things better. There’s nothing wrong with that. And yes, the “redefining” of words, or making their definitions more precise, may well be done so that we can have a “NWO”, or simply so that we can better manage our affairs.
I’m not convinced that he’s “misdirecting” what the “existing order” actually is. Everyone knows what it “is”, but every single person has it in them to consider for themselves what they want to call it, or consider it to mean to them in their personal circumstances, and likewise what they want it to be going forward. In fact, this is one of the chief ways that people eventually break free of the previous generation’s legacy mind control. It is in fact essential for society to move forward, especially a democratic one. There is absolutely nothing wrong with that.
Unless of course you’re preoccupied with the existing rules/laws and see the world in a strict right/wrong capacity. In that situation something might be very very wrong with doing such a thing.
“Nothing but semantic propaganda reminiscent of Orwellian doublespeak and redefining words so that a New Order can be ushered in”
It isn’t quite doublespeak, but yes, language may be evolving so that we can differentiate between different things better. There’s nothing wrong with that. And yes, the “redefining” of words, or making their definitions more precise, may well be done so that we can have a “NWO”, or simply so that we can better manage our affairs.
6,
It is NOT a matter of language evolving, as it is a purposeful re-tasking of established language.
That you do not understand this is not all that surprising. I suggest that you read the novel 1984 to gain some appreciation of this.
So yes, it is precisely as I describe.
That you may want the ends is of no consequence. The ends NEVER justify the means.
Likewise I’m not convinced that he’s “misdir ecting” what the “existing orde r” actually is. Everyone knows what it “is” (statutor y rights that let you sue people), but every single person has it in them to cons ider for themselves what they want to call it, or consi der it to mean to them in their personal circumst ances, and likewise what they want it to be going forward. In fact, this is one of the chie f ways that people eventually break free of the previous generatio n’s le gacy min d con trol. It is in fact essen tial for society to move forward, especially a demo cratic one. There is absolutely nothing wrong with that.
Unless of course you’re preoc cupied with the existing rules /laws and see the world in a strict right /wrong capacity. In that situation something might be very very wrong with doing such a thing.
Likewise I’m not convinced that he’s “misdir ecting” what the “existing orde r” actually is. Everyone knows what it “is” (statutor y rights that let you sue people), but every single person has it in them to cons ider for themselves what they want to call it, or consi der it to mean to them in their personal circumst ances, and likewise what they want it to be going forward.
Unless of course you’re preoc cupied with the existing rules /laws and see the world in a strict right /wrong capacity. In that situation something might be very very wrong with doing such a thing.
Let me say this completely sans filter word.
Likewise I’m not convinced that he’s “misdir ecting” what the “existing orde r” actually is. Everyone knows what it “is” (statutor y rights that let you sue people), but every single person has it in them to cons ider for themselves what they want to call it, or consi der it to mean to them in their personal circumst ances, and likewise what they want it to be going forward. In fact, this is one of the chie f ways that people eventually break free of the previous g e n e r a t i o n’s le gacy min d con trol. It is in fact essen tial for society to move forward, especially a demo cratic one. There is absolutely nothing wrong with that.
Unless of course you’re preoc cupied with the existing rules /laws and see the world in a strict right /wrong capacity. In that situation something might be very very wrong with doing such a thing.
There you go again wanting something objective to be subjective.
Sorry, the real world intrudes.
Anon, just because some people, perhaps old or dead people decided they wanted to arrange their affairs one way does not mean that the new generations need to arrange their affairs in the same manner brosef. They can break free of the legacy systems though it takes effort and time.
What do you think is “objective” compared to “subjective”?
Just because some old/dead people thought about concept x in one manner does not mean that all people must forever.
You are so groundless, that you do not even comprehend the notion of being grounded.
trol. It is in fact essen tial for society to move forward, especially a demo cratic one. There is absolutely nothing wrong with that.
In fact, this is one of the chie f
In fact, this is one of the chie f ways
In fact, this is one of the chie f ways that people eventually break
In fact, this is one of the chie f ways that people eventually break free
“break free” exclaims the lemming and his belieb system as he marches up the hill.
How so very droll – even if (or especially since) unintentional.
k found a trigger word for the filter.
“g e n e r a t i o n”
It appears that any variation of words beginning with “gen”
and continuing with “er” are automatically flagged.
joho, but if they are granted pursuant to a statute, even if they have a fixed term, they are legal rights, not privileges.
There is a strawman here that you are not recognizing.
Ned,
I think you misread joho’s post – nowhere does joho indicate that joho is talking about privileges, rather, joho is pointing out that Prof. Bell is misusing the terms of comparison (and I would point out that Prof. Bell surely should know better – given his profession).
Just another example of the lack of accountability (and let’s hear the whining of professor’s about “picking on them” as they distort the law with their pet philosophies….)
Pretty sure my driver’s license is granted pursuant to a statute and it is my “legal right” to obtain one in accordance with the statute. Even so, the state goes out of their way to tell me that it is a “privilege”.
What makes you think they’re mutually exclusive?
6, they say, no one has a right to drive a car, and no one with a license has a right to keep driving if he or she cannot obey the law and drive safely.
Patents are not the same thing. Patents can only be “revoked” if they are invalid under 282, or are invalidly obtained. This is an entirely different kettle of fish.
“6, they say, no one has a right to drive a car, and no one with a license has a right to keep driving if he or she cannot obey the law and drive safely.”
Ned, they say that nobody has a right to exclude others from making, selling or using any method, product, composition of matter or apparatus. And they say that nobody with a patent application/patent has a right to exclude others if he or she cannot obey the law.
Patents are the “same” thing, in so far as they are simply another legal right and a privilege. Congress decides how patents may be revoked.
The words are not interchangeable 6.
That’s kind of an important point.
I agree they’re not entirely “interchangeable” in all situations. Perhaps not even in this situation. Even so, it is fair to call the legal rights granted by copyright statutes privileges.
He ll anon, it’s right in the definition:
privilege: a special right … granted … to a particular person or group of people
I’m pretty sure that the legal rights granted by copyright statute are special rights. They’re granted to particular persons or groups of people (bands). So yeah. Meets the definition exactly.
The definition in full:
“a special right, advantage, or immunity granted or available only to a particular person or group of people.”
Still playing with semantics and not grasping (purposefully?) the full situation, eh 6?
Open your eyes son.
Three simple distinguishing words 6 (try to stop ignoring them)
Quid Pro Quo
Respectfully disagree re. “government granted rights”.
Individual rights are inherent (albeit not intrinsic). If a government violates and/or ignores an individual’s rights those rights of the individual have not disappeared: what has disappeared in the legitimacy of the government in its role delegated by the people to protect individual rights.
anon2, does the individual have a right to his inventions?
Ned,
Do you remember our discussion of the word “inchoate?”
Yeah. You never defined what you meant by that term.
John Marshall, however was clear, and you since have adopted his thinking as a truism, that the first inventor owns the invention and has a right, under the constitution and statutes, to the patent. Second comers are not inventors.
Thus in an interference, we are looking no so much for priority among rival inventors, but to determine who the first and true inventor is.
I neve rdefined….?
Um, that’s not how it went down Ned.
inchoate: Partially completed or imperfectly formed; just begun.
Black’s Law Dictionary.
The popular analogy was a track race, where Congress is designated the authority to set the rules of the race.
Inventors (plural) show up – they still need to run the race to win.
That you outright 1ie and then choose to 1ie about such a banal point, is despicable.
You are some “professional” to be so routed so often by those you deem “amateurs.”
Pathet1c.
Yes. It is a particular kind of property right, i.e. a right an individual has to reap the fruits of his/her own effort be it mental or physical.
Rumors floating of a new director being chosen by Obama.
Hal Wegner has been pushing heavy for a few days now with a “lack of comment” means that action is brewing.
I guess that after, what 700 days or so, any movement looks like progress?
Copyrights are not statutory privileges, but legal rights, and, moreover, were recognized at common law as being common law rights: Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 118 S. Ct. 1279, 140 L. Ed. 2d 438 (1998).
“Before the adoption of the Seventh Amendment, the common law and statutes in England and this country granted copyright owners causes of action for infringement. Id. at 348.
“By the middle of the 17th century, the common law recognized an author’s right to prevent the unauthorized publication of his manuscript. See, e. g., Stationers Co. v. Patentees, Carter’s Rep. 89, 124 Eng. Rep. 842 (C. P. 1666). This protection derived from the principle that the manuscript was the product of intellectual labor and was as much the author’s property as the material on which it was written. See Millar v. Taylor, 4 Burr. 2303, 2398, 98 Eng. Rep. 201, 252 (K. B. 1769) (opinion of Mansfield, C. J.) (common-law copyright derived from principle that “it is just, that an Author should reap the pecuniary Profits of his own ingenuity and Labour”); 1 W. Patry, Copyright Law and Practice 3 (1994). Actions seeking damages for infringement of common-law copyright, like actions seeking damages for invasions of other property rights, were tried in courts of law in actions on the case. See Millar v. Taylor, supra, at 2396— 2397, 98 Eng. Rep., at 251. Actions on the case, like other actions at law, were tried before juries. See McClenachan v. McCarty, 1 Dall. 375, 378 (C. P. Phila. Cty. 1788); 5 J. Moore, Moore’s Federal Practice ¶38.11[5] (2d ed. 1996); 1 J. Chitty, Treatise on Pleading and Parties to Actions 164 (1892).
“In 1710, the first English copyright statute, the Statute of Anne, was enacted to protect published books. 8 Anne ch. 19 (1710). Under the Statute of Anne, damages for infringement were set at “one Penny for every Sheet which shall be found in [the infringer’s] custody, either printed or printing, published, or exposed to Sale,” half (“one Moiety”) to go to the Crown and half to the copyright owner, and were “to be recovered . . . by Action of Debt, Bill, Plaint, or Information.” § 1. Like the earlier practice with regard to common-law copyright claims for damages, actions seeking damages under the Statute of Anne were tried in courts of law. See 350*350 Beckford v. Hood, 7 T. R. 621, 627, 101 Eng. Rep. 1164, 1167 (K. B. 1798) (opinion of Kenyon, C. J.) (“[T]he statute having vested that right in the author, the common law gives the remedy by action on the case for the violation of it”). Id. at 349.
“There is no evidence that the Copyright Act of 1790 changed the practice of trying copyright actions for damages in courts of law before juries. As we have noted, actions on the case and actions of debt were actions at law for which a 352*352 jury was required. See supra, at 349, 350.[6] Moreover, actions to recover damages under the Copyright Act of 1831—— which differed from the Copyright Act of 1790 only in the amount (increased to $1 from 50 cents) authorized to be recovered for certain infringing sheets——were consistently tried to juries.” Id. at 352-353.
Although Feltner focused on the right to a jury trial, it unmistakably held that copyright rights were recognized at common law to protect authors against publication. This does not suggest that the common law provided all the protections of the modern statutory framework. It does suggest thought that copyright rights are legal rights and not revocable privileges.
As we know, actions involving the validity of legal rights and the right to damages must be tried to a jury.
The suggestion that patents are similar privileges, revocable at will of the sovereign, is a question already answered in the negative by the Supreme Court – and that many, many times. Begin with ex parte Wood & Brundage, ex parte Wood & Brundage, 22 U.S. 603, 6 L. Ed. 171, 32 S. Ct. 589 (1824). Next see, United States v. American Bell Telephone Co., 128 U.S. 315, 9 S. Ct. 90, 32 L. Ed. 450 (1888).
“The authority by which the patent issues is that of the United States of America. The seal which is used is the seal of the Patent Office, and that was created by Congressional enactment. It is signed by the Secretary of the Interior, and the Commissioner of Patents, who also countersigns it, is an officer of that department. The patent, then, is not the exercise of any prerogative power or discretion by the President or by any other officer of the government, but it is the result of a course of proceeding, quasi judicial in its character, and is not subject to be repealed or revoked by the President, the Secretary of the Interior, or the Commissioner of Patents, when once issued. See United States v. Schurz, 102 U.S. 378.”
Next, consider Marbury v. Madison. A legal right is not subject to revocation by the executive or by congress. Its validity is subject to the exclusive jurisdiction of the courts, who must sustain the legal right if valid.
Thanks for taking the time Ned to put that on the record. Will the good professor respond?
“It does suggest thought that copyright rights are legal rights and not revocable privileges.”
The old ones may have been, but the new ones ain’t. They sure as sht are revocable privileges.
“The suggestion that patents are similar privileges, revocable at will of the sovereign, is a question already answered in the negative by the Supreme Court – and that many, many times. ”
Only because of the statute tho bro. You keep missing that for some reason. If the congress changes the statute the whole house of cards you just built changes. And that is the good professor’s point. That the congress could just as well change patents from being property so that they can do as they will with them.
“but the new ones ain’t.”
…anything other than your feelings backing that up, 6?
6, Marbury v. Madison was not based on any statute. It was based on the separation of powers. A legal right cannot be revoked by the executive or by congress — only by the courts.
The a legal right is property — again, Marbury.
6, the basics of the rule of law and the very structure of government is involved in this question.
the basics of the rule of law and the very structure of government is involved in this question.
What is “this question”, Ned?
A legal right cannot be revoked by the executive or by congress — only by the courts
You seem to be suggesting that only the Supreme Court can dramatically change copyright or patent law. That, of course, is a rather strange assertion. Perhaps you can let everyone what sort of changes Congress is allowed to make.
Or maybe you’re confusing the revocation of an individual’s patent with a change in the law that results in the revocation of that patent.
MM, are you familiar with Marbury v. Madison?
MM, are you familiar with Marbury v. Madison?
Yes I am.
Just answer the questions, Ned.
“Just answer the questions, Ned.”
KA-BLOOEY !
Question: which branch of government did the constitution delegate the power to decided cases and controversies? Yes that one.
And what did Marbury say about legal rights? They are property and the courts decided their validity, not the executive.
Marbury was followed consistently in the cases of patents, holding time and again that their validity was within the exclusive jurisdiction of the courts. See, e.g., McCormick Harvesting and the cases it relies on.
Thus patents are not privileges, but legal rights. Pundits and European types simply cannot call them revocable privileges in order to render them revocable by the Executive as were patents in England that were granted by royal prerogative.
See what that taste of historical rewriting is like Ned?
Now view the 1952 Act and your predilection for granting the Royal Nine the power to dispense with that very same separation of powers doctrine.
anon, the Supreme Court has never approved of the reexamination system adopted by Congress. In Stern v. Marshall, the court utterly condemned the insouciant declaration that so and so legal right was a public right so as to allow the right to be removed from the courts.
I must add, that the district court in Patlex upheld reexaminations in part because a dissatisfied patent owner had a right to a trial de novo in District Court. It is noteworthy that that right of a trial de novo was removed by the AIA, and IPRs and other post-grant proceedings never had have a right of a trial de novo.
These executive branch revocations have no justification whatsoever under the Supreme Court jurisprudence except if Congress has the power to grant something else other than patents that have exclusive rights for a fixed term, for example, gold stars to make inventors feel good.
Your ‘problem’ Ned is in the uneven application of the separation of powers doctrine you wish to have.
You cry when that separation appears to harm the judicial branch and its role, but you turn a blind eye when that same branch is overstepping its bounds. That is, until my words penetrate (somewhat) and you realize “abstract” (and Gist…?) are not any way to “interpret” the map as written by Congress. You fail to see the ends pursued by the Court, because those ends (currently) align with your anti-business method agenda. You fail to take an objective view, so your “taking umbrage” loses its force. The adage comes to mind: you cannot be a little bit pregnant. Either you endorse the separation of powers or you do not. Being selective – as you want to be – wrecks both the instances you do not want to see the separation of powers problem AND the instances you DO want to see the separation of powers problem.
This ‘problem’ of yours is not one that disappears with repetition – it just gets worse.
“You seem to be suggesting that only the Supreme Court can dramatically change copyright or patent law”
That is not what it “seems” at all – of course you already knew that, eh, Mister Spin?
“You seem to be suggesting that only the Supreme Court can dramatically change copyright or patent law”
That is not what it “seems
Excellent. So we all agree then that Congress could, if it wished, dramatically scale back the rights of all patent owners and copyright owners if it chose to do so.
Um, you act surprised.
Not sure why, as that has always been my position.
Perhaps you would like to see my analysis on the the Oasis thread: link to patentlyo.com
Heaven forbid you actually add a substantive comment on the merits, but hey, even a broken analog clock is right twice a day.
Yeah I hear you, but whatever “legal right” of copyright that was imagined back 200 years ago was very very limited compared to the monstrosity we have today. And it is a creature of statute.
“6, the basics of the rule of law and the very structure of government is involved in this question.”
Nah, you’re just trying to involve it in this question. Like you have tendency to do. The scheme we have now is unquestionably a big ol creature of statute and your trying to pretend that “o it’s the same thing as the legal right they had at common law 200 years ago” is simply dreaming at best.
6, I really think you have a basic misunderstanding of the question at hand.
A legal right is property. It really makes no difference if it is a common law right or statutory right.
Legal rights, property, cannot simply be revoked by the government. See, Marbury v. Madison.
I really think you have a basic misunderstanding of the question at hand.
What is “the question at hand”, Ned?
“A legal right is property.”
A legal right is simply a right bestowed on a person by a given legal system Ned. As to whether or not that right is “property” seems very much another question. One that the congress had to go out of its way to settle for patents through statute. So you’ll forgive me if I’m not on team “all legal rights are property” just now.
…as is ALL property rights, 6 – even real property.
(that’s the simple concept eluding Malcolm. Even real property only exists because the law is there to enforce the concept)
“as is ALL property rights, 6 – even real property.”
I can agree that pretty much all property rights are or involve/come with legal rights in our legal system. The converse is not the same, I do not agree that all legal rights are property or property rights.
You care to give a backing to your beliebs there 6?
From Marbury v. Madison:
“In order to determine whether he is entitled to this commission, it becomes necessary to inquire whether he has been appointed to the office. For if he has been appointed, the law continues him in office for five years, and he is entitled to the possession of those evidences of office, which, being completed, became his property.
…
“It is, therefore, decidedly the opinion of the court, 162*162 that when a commission has been signed by the president, the appointment is made; and that the commission is complete when the seal of the United States has been affixed to it by the secretary of state.
Where an officer is removable at the will of the executive, the circumstance which completes his appointment is of no concern; because the act is at any time revocable; and the commission may be arrested, if still in the office. But when the officer is not removable at the will of the executive, the appointment is not revocable, and cannot be annulled. It has conferred legal rights which cannot be resumed.
The discretion of the executive is to be exercised until the appointment has been made. But having once made the appointment, his power over the office is terminated in all cases, where by law the officer is not removable by him. The right to the office is then in the person appointed, and he has the absolute, unconditional power of accepting or rejecting it.
Mr. Marbury, then, since his commission was signed by the president, and sealed by the secretary of state, was appointed; and as the law creating the office, gave the officer a right to hold for five years, independent of the executive, the appointment was not revocable, but vested in the officer legal rights, which are protected by the laws of his country.
To withhold his commission, therefore, is an act deemed by the court not warranted by law, but violative of a vested legal right.
…
“The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. … the validity of his appointment must have been determined by judicial authority.”
Yes Ned, in Marbury the appointment was not revocable (by lawl). ANd yes, the legal right was a vested legal right not revocable by law.
“The question whether a right has vested or not, is, in its nature, judicial, and must be tried by the judicial authority. … the validity of his appointment must have been determined by judicial authority.”
I agree entirely.
None of that means that congress cannot empower the executive to revoke a legal right, or perhaps even do it themselves by statute making (with pres’s sig on the law).
Why this is so hard for you I don’t understand.
6, if congress did provide that patents were revocable at will, or through revocation procedures, by the executive, then what do we have? A legal right of exclusivity for a limited period?
Think about the fixed term provided by statute in Marbury. That was critical to the holding.
Now, think about the requirement for a fixed term provided by the constitution: “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.”
Congress does not have the authority to grant patents that are revocable by the executive. Such would violate the constitutional grant of power to congress. Neither can congress grant inventors gold stars, shiny certificates or a right to eternally litigate validity in the PTO.
Moreover, having a right that can be withdrawn by the executive at their discretion is no right at all. Such a non right cannot incent invention, protect businesses that rely on the patent, and ultimately frustrate the constitutional purpose of promoting progress. Such a patent only buys a struggle against the deep pockets who can endlessly file IPRs and will do so because of their means, might makes right, and all that.
Serial, anonymous reexaminations and IPRs by phoney LLCs are now the norm. Such is not a good patent system.
“Think about the fixed term provided by statute in Marbury. That was critical to the holding.
Now, think about the requirement for a fixed term provided by the constitution: “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.””
I don’t need to think about any of that sht. Congress has the power. Period. End of fcking story. P O W E R. Look that sht up. Jes us H ch rist sakes. Stop tying yourself up in kno ts about this.
“Congress does not have the authority to grant patents that are revocable by the executive. Such would violate the constitutional grant of power to congress. Neither can congress grant inventors gold stars, shiny certificates or a right to eternally litigate validity in the PTO.”
Yeah well tell it to your beloved courts. I’ll be here to lol. There’s a case similar pending right now. And I’ll be here to lol when it goes down. You going to be ready to lol when that sht gets smacked down simpler than fly being swatted?
“Moreover, having a right that can be withdrawn by the executive at their discretion is no right at all.”
It is hardly “at their discretion”. You have a legal remedy.
“Such a non right cannot incent invention, protect businesses that rely on the patent, and ultimately frustrate the constitutional purpose of promoting progress. Such a patent only buys a struggle against the deep pockets who can endlessly file IPRs and will do so because of their means, might makes right, and all that.”
I may agree with you. But as of right now congress doesn’t. So go tell them about your troubles. Frankly I think you can either give up one of the two: after allowance reviews or the nonsense that is the current state of the business method/software paradigm in patent law. Your choice. Choose wisely. Nobody gives a flying fck about giving you strong patents in the actual useful arts. When you start fcking around trying to get patents outside that, they going to start tearing away your rights. It was the bars choice. And they made it. Now they’re living with it.
Bully for them.
“Serial, anonymous reexaminations and IPRs by phoney LLCs are now the norm. Such is not a good patent system.”
Well if that is happening then I agree even more. And perhaps congress will as well. Mayhap they didn’t really expect that (save maybe on the worst of the worst).
“power” to 6 runs right smack into his “control” issues, as is evidenced by his “brute force” thinking and “I don’t need to think about any of that sht. Congress has the power. Period. End of fcking story. P O W E R. Look that sht up. Jes us H ch rist sakes. Stop tying yourself up in kno ts about this”
Sorry 6 – your wanting to stop talking and run away is exactly the wrong thing to do. Hmmm, your running away again – that’s a symptom that you shared…. (you are doing that projecting thing again, aren’t you? 🙂 )
“the actual useful arts”
LOL – the invitation for you to join the Amish is still there 6.
Funny, isn’t it how you and Malcolm are not willing to put your money where your mouth is and abstain from all of this so-called non-useful arts innovation that you have such “problems” with.
Hypocrites.
“very very limited compared to the monstrosity we have today”
Self-evident, but so what?
See below first.
But, “so what” is that even if there is some “common law” origin to the legal rights behind copyright the legal rights we have now have so far outgrown that which is “common law” that the vast bulk of what we have now is not properly thought of as irrevocable just because some seedling of copyright is found in common law.