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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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The Arbitrariness of Patent Law

As noted on Patently-O, the Supreme Court is set to address a question about the patentability of certain "processes"--whether the process has to be "tied" to a particular machine or apparatus, or transform a particular article into a different state or thing ("machine-or-transformation" test), to be eligible for patenting.

Now, I append below a summary of the various positions taken by various briefs filed in this case. The recommendations are all over the place. Examples like this should be considered by those libertarians who advocate IP and who think that "the courts" could just figure out the gray areas easily. They do not seem to realize this is purely artificial law, giving rise to insoluble questions--when the goal of the court is not to do justice, but to construe a decree of a legislature, you cannot expect just, or predictable, results. (For more on this, see my Legislation and the Discovery of Law in a Free Society, pp. 151 et seq.) As Kafka wrote, "Justice must stand quite still, or else the scales will waver and a just verdict will become impossible."

  • Yahoo (Bilski - Yahoo! Amicus Brief (S.Ct) (as filed) (8-6-09).pdf) The focus on physicality does not make sense in today's technology.
  • IBM (08-964 IBM.pdf) The proper test looks for a "technological contribution."
  • Regulatory Data Corp ( 08-964 Regulatory Datacorp et al..pdf) Brief by John Duffy focuses directly on the historical importance of the statutory test. "The government is now asking this Court to impose a formalistic restriction on definition of "process" that would create an unprecedented and uncertain judicial limitation on patentable subject matter. This Court should reject that invitation just as it did more than a third of a century ago, when the government unsuccessfully advanced the very same argument. See Gottschalk v. Benson, 409 U.S. 63, 71 (1972)."
  • Accenture (08-964 tsac Accenture and Pitney Bowes, Inc.pdf) Machine or transformation test is not a reliable indicator of anything relevant.
  • Austin IP Law Ass'n ( 08-964 Austin Intellectual Property Law Association.pdf) The patent statute explicitly defines process quite broadly in Section 100(b). The Federal Circuit's version of "process" in 35 U.S.C. 101 is far narrower than the broad definition of "process" in 35 U.S.C. 100(b) (2008).
  • Double Rock and other IP entities (08-964tsacdoublerockcorporation.pdf) The Federal Circuit test conflicts with Supreme Court precedent and Congressional intent.
  • Law Professors [Lemley et al.] (08-964ac20lawandbusinessprofessors.pdf) The distinction on patentable subject matter should be based on the distinction between applied and abstract inventions. Bilski's claims fail this test.
  • Chakrabarty (08-964 Chakrabarty.pdf) Brief by Scott Kieff and Richard Epstein argue that patent rights operate "like a beacon in the dark" to start conversations between innovative entities and potential users.
  • Franklin Pierce Law Center (Bilski.pdf) Court should adopt the "useful, concrete, and tangible result" test.
  • TeleCommunication Systems (08-964nsactelecommunicationsystemsinc.pdf) Subject matter eligibility should be predictably broad.
  • BIO, AdvaMed, WARF and U of Calif (08-964 tsac Biotechnology Industry Organization et al..pdf) Any decision should be clear that biotechnology is patentable.
  • Conejo Valley Bar Ass'n (08-964.ac.Conejo Valley Bar Association.pdf) The substantive elements of the patent act (102, 103, and 112) do all the necessary work.
  • Novartis (08-964tsacNovartisCorporation.pdf) A process of diagnosis should be patentable.
  • Dr. McDonough (08-964_PetitionerAmCuTMcDounough.pdf) "American innovation is not confined to Industrial Age mousetraps and other cleverly contrived gadgets. The modern economic agent is more likely to encounter innovation today in the services they consume than in the contraptions they use. The present amicus curiae suggests that the decision of the Federal Circuit in this case is an attempt to apply an Industrial Age standard to address a perceived Services Age problem, a problem that the present amicus curiae suggests does not exist."
  • State of Oregon (08-964_NeutralAmCuOregon.pdf) (The Patent Hawk filed this brief on behalf of all Oregonians - although apparently without any official state approval) The brief makes an important point: Although Section 101 comes first in the statute, it does not make sense to use it as a screening tool at the PTO. Rather, the PTO's skills are in comparisons of prior art and ensuring that the elements of Section 112 have been satisfied.
  • Chicago IP Law Ass'n (08-964 ac Intellectual Property Association of Chicago.pdf) There are strong parallels here with KSR; CAFC rule is too rigid.
  • Borland (Amicus Curiae Brief (Borland Software Corporation).pdf) The CAFC test does not properly follow Supreme Court precedent.
  • Time Systems (08-964 ac On Time Systems.pdf) Some abstract ideas should be patentable.
  • Monogram BioSciences and Genomic Health (08-964 ac Monogram Biosciences Inc.pdf) Patentable processes can be non-physical.
  • Sachs and Brownstone (08-964 ac Robert R. Sachs.pdf) The CAFC test is limits the patenting of software, and a bad result.
  • Boston Patent Law Association (08-964tsacbostonpatentlaw.pdf) A broad scope of patentable subject matter better preserves the health of an innovative culture; many landmark inventions fail the Federal Circuit's Bilski test.
  • Georgia Biomedical Partnership, Inc. (08-964 Georgia Biomedical Partnership Inc.pdf) The Supreme Court has consistently refused to offer a "rigid" test.
  • Dolby Labs (08-964 Dolby Laboratories et al..pdf) The important thing is to settle expectations.
  • Teles AG ( 08-964 Teles AG.pdf) Subject matter eligibility should be "dynamic." "Further, the global nature of today's economy strongly recommends that the United States patent system be harmonized with robust patent systems of other nations wherever possible."
  • Medtronic (08-964 Medtronic.pdf) Provides specific examples of medical innovations that may be unpatentable under the Federal Circuit test
  • Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell's "build-to-order" patent (5,963,743) ; AT&T's linear programming patent (4,744,028); and Sperry Corporation's LZW compression patent (4,558,302).
  • Intellectual Property Owners (08-964acintellectualproperty.pdf) Machine or transformation test is not the only test; In its transformation test for signals, the CAFC "unduly focuses on the contents of the data . . . rather than the manner in which those signals are generated;" a general purpose computer should be considered a "particular machine."
  • AIPLA ( 08-964 American Intellectual Property Law Association.pdf) A new exclusionary test is not needed.
  • Houston IPLA (08-964 Houston IP Law Assoc..pdf) The test negatively impacts Dell's "build-to-order" patent (5,963,743) ; AT&T's linear programming patent (4,744,028); and Sperry Corporation's LZW compression patent (4,558,302).
  • Armanta, Asentinel, Cybersource, and Hooked Wireless (08-964 Entrepreneurial Software Companies.pdf) Questions of patentability are causing software companies to lose value.
  • Mr. Meiers ( 08-964 Raymond C. Meiers.pdf) A patentable invention "applies manifestations of nature and achieves a useful result." This is the tripartite system.
  • Univ. South Florida ( 08-964 University of South Florida.pdf)
  • Awaken IP ( 08-964 AwakenIP.pdf) The CAFC test is unworkable and is as bad as the vague idea/expression dichotomy of copyright.
  • BSA ( 08-964 Business Software Alliance.pdf) Section 101 has been consistently and correctly interpreted to cover software innovations.
  • PhRMA, etc. ( 08-964 PhRMA et al..pdf) Medical processes should be patentable."
  • Caris Diagnostics ( 08-964 Caris Diagnostics, Inc.pdf) Diagnostic method patents are important and have been called into question by Bilski.
  • AIPPI (TooBig) A flexible test is better, and TRIPS requires a flexible standard.
  • FICPI ( 08-964 FICPI.pdf) "The 101 analysis should focus on the section's substantive utilitarian requirement, rather than retrospectively attempting to rigidly define the categories of patentable subject matter without the foresight of the particular form technological innovations may take in the future.

[SK crosspost]


Comments

Good Lord. Things really ARE that bad when it comes to the patent law mess, aren't they? I was admittedly hopeful when I first heard that the Supreme Court would be hearing this case. Now, I'm not so sure.
Gee, sounds like the various positions Libertarians take with an array of matters. So, what you are saying is that patent law is just like any other human endeavor, whether it be easements and emminent domain or medical treatment, there are tons of opinions.

Just because people do not agree on the meaning of a body of law (which happens with all laws, and all politics), the law may still be publicly beneficial and serve a social need. Your lengthy list is merely a list of opinions, which you use to support your opinion, which is one of another lengthy list of opinions. Thus, you have proven unequivocally that people will have an array of opinions on any issue you wish to name. Congratulations.

Anonymous, I think you missed the point. It's one thing to have different people with different opinions on an issue, but it's a completely different thing to make one of these opinions "the only morally correct" law for everyone. The conclusion is that if an issue spawns so many varying opinions, any one of the opinions cannot be forced on everybody else as a "universal law". What we're looking for here would probably be some kind of polycentric law I guess?
Samuel:

Laws and rules are an embodiment of an opinion as "the only morally correct" law for everyone. Your conclusion does not hold. Some people think murder is unequivocally wrong. There are others who see murder as justifiable in some circumstances. Others see murder as unavoidable in some circumstances. Our laws are clear, in spite of the numerous opinions on the subject, we have deemed it in our society's best interest to force the opinion of the majority on everyone.

Pick any rule or law, and you will find numerous opinions on the subject. Yet, we have forced, as a society, one opinion on everyone. Is that right? When it comes to interactions we need some measure of predictability, so, yes, it is right for our society.

As a secondary issue, the nearly 40 references above do not represent 40 different opinions. Some opinions agree. Others cover different aspects of intellectual property law. It is ridiculuous to claim that there are 40 different opinions about the same intellectual property law. Further, such opinions are part of the freedom of speech and healthy debate over the scope and value of intellectual property law. I would think that as a Libertarian you would applaud such exploration of knowledge and opinion rather than thinking that it is somehow an indication that something is "wrong." If diversity of opinion is a hallmark of moral wrong, then Libertarians are in serious trouble.

"If diversity of opinion is a hallmark..." - maybe you should re-read my post. I see nothing wrong with different people having different opinions nor with discussing them. It's wrong to pick one of them and force it violently on others.

"...we have forced, as a society, one opinion on everyone..." - not "WE", not "a society", but a group of people forced one opinion on everybody else VIOLENTLY. That is wrong (even if it was a 99% majority).

Samuel:

So, fundamentally all laws are wrong. Okay. Then there is no point of discussing anything further. Our system of government is founded on majority rule. Fundamentally, 50.1% of the population makes the rules for 100% of the population, and "we" agreed to this type of rule 200+ years ago. If you disagree, you may certainly express your opinion, but you too are required to live by these rules as long as you stay within the boundaries of the United States. On the other hand, I am unaware of any nations founded on Libertarian principles.

You again misread my post. I did not say "all laws" are wrong. Violently forcing them on those who didn't agree with them is. You might also want to re-evaluate your statistics. Did really more than 50% of all vote for whatever there is in a government? And did the voters agree with everything they were voting for or perhaps they were just choosing the lesser of two evils? And who is this "WE" you keep talking about? Certainly it isn't everybody. I am unaware of any way a "nation" could be "founded" on libertarian principles. What if a group of people need not to be a "nation" nor be "founded" to be free?
Forgive me for butting in; I cannot resist.

Majority rule or its variants (modern democracy) might well be the most practical form of government that we have so far been able to devise. Certainly nobody will deny that it is an improvement over despotism, and other such forms of government that humanity has seen in recent history.

However, Samuel is not, nor is any other libertarian, advancing "libertarianism" as an alternative for majority rule. The libertarian point is not about how to decide on matters of the state but about what is a matter of the state and what isn't.

Libertarians feel that, regardless of the form of government, no government may invade the rights of individuals. For example, no government may decide that black men can be owned as property. Whether the deciding entity is the majority of the population, a tyrant, a communist party is irrelevant.

What a government does is not necessarily legitimate just because it is supported by the majority of the population.

Kid:

Regardless of what Samuel said, his earlier statement was that any law voted for by less than 100% of the people that applies to all people is forced on those that did not vote for it, and is therefore wrong. However, Samuel always has the right to move to another country if he believes he is being forced to obey speed limits and respect the intellectual property rights of others. Far be it from me to stop him.

Anonymous:

If government expands its business beyond the boundaries set by individual rights, is it then not true that any law that is not consented to by 100% of the population is in discord with libertarian principles? After all, the rights of the individuals that did not consent are then illegitimately being violated.

Leaving people the option of moving to another country is very generous, and not afforded to citizens of every state (North Korea for example). However, offering the choice between moving your family to another country and following an illegitimate law still seems coercive.

Kid:

The moment the government makes a law, it expands its business beyond the boundaries set by individual rights. Ergo, all laws are in discord with Libertarian principles. However, that also questions whether Libertarian principles can ever be valid. If someone is born into a society and that someone disagrees with the rules of that society, and society perpetually refuses to change its principles to match the arbitrary principles of the individual, then what hope does the individual ever have of attaining any sort of legitimacy?

...following an illegitimate law still seems coercive.

Since all laws are illegitimate according to Libertarian principles, it seems that the only hope for Libertarians is to purchase a place to have their own country.

"If someone is born..." - I don't see how that invalidates the principles of freedom. "Society" (ie. all the other people) need not changing their individual contracts between each other in order to "legitimize" the newcomer. He is free to propose his own contracts to them and each one of them is free to accept or decline.

"...the only hope..." - If you were constantly harassed by a gang of criminals in a current system with ineffective justice (eg. restaurant extortion in eastern europe), is your only hope to leave? Or perhaps you have a slight chance to defend yourself by allying with neighboring restaurants?

"...respect the intellectual property rights of others..." - I would gladly respect others' rights except in this particular case no one was ever successful in proving they have such a right. Also, the state cannot grant rights that it doesn't have in the first place.

Samuel:

"If someone is born..." - I don't see how that invalidates the principles of freedom. "Society" (ie. all the other people) need not changing their individual contracts between each other in order to "legitimize" the newcomer. He is free to propose his own contracts to them and each one of them is free to accept or decline.

Yes, but the situation we are in now is that the newcomer has proposed his own contract, but society has declined accepting the contract of the newcomer (meaning the established laws of our society have not changed), and the newcomer keeps bitching about it, perhaps hoping that harassment will accomplish a change.

"...the only hope..." - If you were constantly harassed by a gang of criminals in a current system with ineffective justice (eg. restaurant extortion in eastern europe), is your only hope to leave? Or perhaps you have a slight chance to defend yourself by allying with neighboring restaurants?

But, we are not talking about being harassed by a gang of criminals, are we? In fact, we are not talking about the actions of others, but the actions of the newcomers. In fact, some or many of the previous members of the society may feel that the newcomer is a member of "...a gang of criminals..." attempting to violently violate the established laws of the system that they believe has effective justice.

"...respect the intellectual property rights of others..." - I would gladly respect others' rights except in this particular case no one was ever successful in proving they have such a right.

The Constitution of the United States of America (perhaps you have heard of this document) granted the Congress of the United States of America the ability to grant such rights. The ability to grant these rights has been challenged to the Supreme Court of the United States of America and been upheld time after time after time after time...ad infinitum. How much proof do you need that the rights were granted under the Constitution?

Also, the state cannot grant rights that it doesn't have in the first place.

Ah, but the Constitution was written, re-written, and debated at length. Then, individual states further reviewed it and debated it, eventually affirming that the people of those states would support the Constitution as it was written. You are in wrong that the state granted any rights that is did not have. The people of the United States of America ultimately permitted the state the ability to grant those rights.

Once the state has been granted the ability to control rights, whether to physical property or intellectul property, the people would need to agree to take that ability away, and they people have yet to do so.

The constitution gave no power to grant privileges, such as copyright and patent, only power to secure natural rights.

The state certainly had the incumbent power to soon grant such privileges irrespective of the constitution, but that doesn't mean (post hoc ergo propter hoc) that power came from the constitution.

As you observe, the people haven't yet got around to realising the fiat privileges are illegitimate, unconstitutional.

That realisation isn't far off though...

"If someone is born..." - sorry, I don't see how your response relates to what we were debating in this topic. You have still not demonstrated what and how anything "questions whether Libertarian principles can ever be valid".

"...the only hope..." - I was referring to the criminal state which violently and illegitimately forces it's regulations on the people. You are here contradicting yourself and you're attempting to present a circular argument.

"The Constitution..." - a paper nor any authority cannot grant rights or abilities that don't exist. Even if everybody at some time agreed on a common contract (let's call it a constitution), that contract does not bind those who didn't agree with it (yet), for example those that were yet to be born.

"...and been upheld..." - how? Will you please finally provide something that is not a circular argument?

"...states ... affirming that the people ... support..." - that is a non sequitur. I don't see how a "state's" opinion suddenly becomes "the people's" agreement.

"The people ... ultimately permitted the state..." - Ah so when a person is being harassed by a gang of criminals and is not powerful enough to resist them and defend himself, according to you he effectively "permits" them to modify his property rights and by this they become legitimate?

Crosbie:

I think the Constitution is quite clear:

Congress has the 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;

The "exclusive right" to their writings and discoveries is unequivocal. Exclusive means others do not have a "right" to the writings of authors and inventions of inventors for a limited time. For patents, the "limited time" chosen by our Congress as well as the nations of the world is 20 years from the date of filing.

'Exclusive right' means the right the author already has (in nature) to exclude others from their writings.

It does not mean the author (or even congress) can deny any right of others.

Monopolists would certainly love the latter meaning, but the constitution was drawn up to protect/secure individuals' rights, not to deny or suspend them, nor to create a transferable privilege that denied them.

Copyright is such a privilege, and so it is a contradiction in terms for a privilege to represent the securing of an author's exclusive right to their writings.

The constitution is indeed quite clear, so it takes a deal of linguistic misinterpretation to infer it sanctioned the granting of monopolies (that were, unforeseeably to the Framers, unconstitutionally granted a few years later anyway).

Of course, if you have been brainwashed into believing that the constitution sanctions the granting of monopolies you will perceive it to do so (based upon a received, corrupt interpretation).

Bear in mind that the modern meaning of 'exclusive right' actually comes from the modern interpretation of copyright, not from the Framer's recognition of an author's natural exclusive right. Copyright is the legally granted right (or privilege) to exclude others from reproduction or performance of one's works (hence 'exclusive right') - not the constitutionally recognised right. To suppose that the Framers were specifying the yet to be legislated privilege was to be secured is putting the cart before the horse. The constitution cannot empower congress to secure a privilege yet to be legislated, it can only empower congress to secure the individual's already extant natural rights, i.e. their natural exclusive right to their writings.

If the constitution was to sanction copyright it would have to give congress power to grant such privileges as monopolies. And, granting a privilege is rather different to securing a right. To do such a thing was also anathema to the Framers, and would be fundamentally incompatible with a constitution even if they had wanted them granted.

"Bear in mind that the modern meaning of 'exclusive right' actually comes from the modern interpretation of copyright, not from the Framer's recognition of an author's natural exclusive right."

The framers never recognized a natural right in IP. They recognized it was purely civil--artificial, limited, temporary, and designed to achieve a policy goal.

Stephan, can you clarify whether you are talking about a) congress and their decision to legislate copyright or b) the Framers and their recognition of an author's exclusive right and that congress should have power to secure it. ?

The decision to legislate copyright may well have been made by congress as the granting of a monopoly as a means of incentivising authors to publish their works, to achieve a policy goal. However, that's a completely different issue from the Framers' recognition of the rights of the individual and the empowerment of a government to protect them.

Incidentally, that patent and copyright are quite different animals should be a big clue that they are monopolies legislated in the interests of congress (and their lobbyists), not aspects of an individual's natural right recognised by the constitution.

It would be spooky for nature to imbue a difference between mechanical designs (similarity) and graphical expressions (provenance).

Crosbie:

'Exclusive right' means the right the author already has (in nature) to exclude others from their writings.

I understand that is your belief. I disagree.

It seems to me you've got it round the wrong way.

You are stating your understanding or belief.

I am presenting an argument.

One's understanding or belief lends no support to an argument (though it may affect how one argues).

I don't doubt that many devoutly believe the US Constitution sanctions the granting of monopolies. However, that belief is immaterial to any argument as to whether it actually does.

Samuel:

"If someone is born..." - sorry, I don't see how your response relates to what we were debating in this topic. You have still not demonstrated what and how anything "questions whether Libertarian principles can ever be valid".

*sigh* We are going in circles. Let me try again.

100 people form a society. They decide, based on their observation of nature, that ownership of property is unnatural. Indeed, "nature" owns all property, with the animals that use that property doing so in a transitory fashion. For example, predators maintain control of a territory, but they do so for a limited time, after which the land becomes available for other predators.

Emulating natural rights of animals, the 100 people decide that all property shall be owned collectively, but control over portions of that property will be given to either individuals or groups for as long as the collective decides that it is in the best interest of the collective to assign such control.

A new individual joins the group of 100, proclaiming that it is a "natural" right that an individual should "own" property (land, in this case). However, the society realizes that the unnatural belief in individual ownership of land is antithetical to their own belief in true natural rights.

Now, arbitrarily, let us call the society, "society." Let us arbitrarily call the newcomer a "Libertarian." The Libertarian's belief in individual ownership of land is unnatural according to Society, and Society can never countenance a belief so extremely antithetical to their own. Ergo, the newcomer must either acquiesce to Society or the newcomer must go elsewhere.

"...the only hope..." - I was referring to the criminal state which violently and illegitimately forces it's regulations on the people. You are here contradicting yourself and you're attempting to present a circular argument.

Other than alleging a circular argument, you have not presented facts showing that I have a circular argument.

Regardless, I inferred from your comments that you were describing Democratic society and the rules the society have created as the "criminal state." If that is not the case, then I stand corrected. However, if that is the case, then your comments appear to be meaningless because they are without context.

Let us suppose that you claim that our current laws are from a "criminal state" which "violently and illegitimately" are forced on "the people." However, as has been demonstrated throughout history, "the people" of the United States have the power to change unjust laws. Witness the support for Obama's disastrous health care system. First, support was quite strong, but as people began to realize that the only way such a system would work is to impose ruinous, massive and illegitimate taxes on wage earners, "the people" have begun to express their disinterest in the system as proposed, and it is nearly assured that the current proposal will not pass.

Similarly, the rights established and agreed upon by "the people" with respect to patents serve a public policy goal and have been agreed, both explicitly and tacitly, to be a valuable form of extremely limited monopoly. That you disagree with that monopoly is fine, but you are not permitted to abrogate the will of the people unilaterally. You may use the legitimate structure of social organization to change the laws, but you are not permitted to ignore them, otherwise you would be a criminal and we would have anarchy.

"The Constitution..." - a paper nor any authority cannot grant rights or abilities that don't exist. Even if everybody at some time agreed on a common contract (let's call it a constitution), that contract does not bind those who didn't agree with it (yet), for example those that were yet to be born.

Ah, but that is not true. Those who have yet to be born are required by existing society to follow the rules of that society, or work to change them. Otherwise, anarchy would ensue. In fact, you are bound to follow those rules and I would be willing to bet you do so daily, regardless of whether you like the rules. There is no constitutional right for people to ignore the laws established by their forefathers.

Here you establish not logic, but a belief. You believe that a contract between two entities should not be binding on someone that inherits the contract. However, our laws, indeed, our society, has deemed that such contracts are in fact inheritable. Such has been common law and embodied law for centuries. Those who fail to accept the terms of such pre-existing contracts are typically considered criminals.

"...and been upheld..." - how? Will you please finally provide something that is not a circular argument?

Would you please explain how this is a circular argument? The constitution is a contract among the citizens of the United States, a condition of living as a citizen in the United States. If you do not agree with the contract, you are free to leave. You are not free to disregard the contract. That is not a circular argument, that is a fact of society. Indeed, all societies have a common contract that outlines the rights, rules and responsibilities of the citizens of that society. Born into that society, or choose to move into that society, and you are required to accept those rules, or to non-violently work to change them. You are not morally permitted to disregard them - which would be seen as violent and illegitimate by the members of that society, making that person a violent criminal.

"...states ... affirming that the people ... support..." - that is a non sequitur. I don't see how a "state's" opinion suddenly becomes "the people's" agreement.

(1) Group of people meet. (2) Group of people decide that it is in their best interest to attain a level of uniformity. (3) Group of people decide upon and select a group of rights for the people in the society, rules for people in the society, and responsibilities for people in the society. (4) The group of rights, rules and responsibilities are maintained by an organization called the state, which remains subservient to the will of the people through the ability to change the rights, rules and responsibilities. (5) The state only has an "opinion," a word that you used, not me, to the extent that the people have an opinion. Indeed, the state should NOT have an opinion, only a responsibility to exercise the will of the people.

The only non-sequitur here is your attempt to add words to my comments that did not previously exist.

"The people ... ultimately permitted the state..." - Ah so when a person is being harassed by a gang of criminals and is not powerful enough to resist them and defend himself, according to you he effectively "permits" them to modify his property rights and by this they become legitimate?

Good heavens. Why do you think we have laws? The laws exist to stop the gang of criminals, for example, those who would take away an inventor's ability to have a limited exclusive right to an invention, from harassing the inventor, eliminating rights granted to the inventor for the benefit of society. Would I have those sick, demented individuals legitimized? Absolutely not.

The laws of the state should balance the needs of individuals with the needs of society. If the laws fail to do that, "the people" need to modify the laws to assure such balance does occur, not harass others with their ill-conceived beliefs.

Crosbie:

'Exclusive right' means the right the author already has (in nature) to exclude others from their writings.

It does not mean the author (or even congress) can deny any right of others.

You state in your later post that you present arguments, not beliefs. I submit that the two statements above are purely belief and are not arguments.

Monopolists would certainly love the latter meaning, but the constitution was drawn up to protect/secure individuals' rights, not to deny or suspend them, nor to create a transferable privilege that denied them.

Yes, the constitution was drawn up to protect and secure individual's rights, but it was also drawn up to define the limitation of government. One such limitation included the ability to provide for exclusivity of copyright and patents. You may attempt to subvert the intention with your own interpretation, but that is still not an argument, but a belief.

Copyright is such a privilege, and so it is a contradiction in terms for a privilege to represent the securing of an author's exclusive right to their writings.

Pardon me, but did you miss a step in your writing? Copyright is a privilege secured by the constitution, and it DOES represent the securing of an author's exclusive right to their writing for a limited time. Again, you do not present an argument, but an interpretation or belief.

The constitution is indeed quite clear, so it takes a deal of linguistic misinterpretation to infer it sanctioned the granting of monopolies (that were, unforeseeably to the Framers, unconstitutionally granted a few years later anyway).

Wait a moment. Most of the Framers of the constitution were alive when the first copyright was granted ONLY two years after the constitution was ratified. Separately, Rhode Island ratified the constitution AFTER the first patent act. If the Framers truly disagreed with copyrights, which were granted nearly immediately after ratification of the constitution, and patents, which were granted PRIOR to ratification of the constitution, they had plenty of opportunity to rail about the abuse of the constitution. However, they did not. Certainly the Framers were already aware of the the pros and cons of patents, given that the first patents in the area that became the United States may have been granted in the 1600's and given their active discussion of the English patent system.

The first patent act was passed only two short years after the constitution was ratified. Thomas Jefferson then wrote a new act in 1793, after having an opportunity to mull over the constitution and patents. Clearly, had Jefferson been opposed to patents and monopoly, or thought they violated a constitution he helped write, he had a perfect opportunity to weaken the applicability of patents, but he did not. Given Jefferson's earlier concerns about the potential abuses of monopoly, one can only conclude that Jefferson recognized that the constitution literally meant that the fruits of an inventor's labor (and similarly, that of author's), should be secured for a limted period of time to only the inventor or the author. To imply any other meaning would be twisting the language and meaning of the constitution.

Of course, if you have been brainwashed into believing that the constitution sanctions the granting of monopolies you will perceive it to do so (based upon a received, corrupt interpretation).

Of course, you have been eating your own propaganda for so long that you no longer have an unbiased, uncorrupted viewpoint of the brilliance of Thomas Jefferson and the constitution.

Bear in mind that the modern meaning of 'exclusive right' actually comes from the modern interpretation of copyright, not from the Framer's recognition of an author's natural exclusive right. Copyright is the legally granted right (or privilege) to exclude others from reproduction or performance of one's works (hence 'exclusive right') - not the constitutionally recognised right. To suppose that the Framers were specifying the yet to be legislated privilege was to be secured is putting the cart before the horse. The constitution cannot empower congress to secure a privilege yet to be legislated, it can only empower congress to secure the individual's already extant natural rights, i.e. their natural exclusive right to their writings.

It is unfortunate that you continue to put words in Thomas Jefferson's mouth. Jefferson knew quite well what the "exclusive right" would be. He knew quite well that it was in fact a monopoly, because he said so. You may wish to believe otherwise, and belief is a lovely thing, but not supported by the framers of the constitution unless you misinterpret their rather clear statements.

If the constitution was to sanction copyright it would have to give congress power to grant such privileges as monopolies. And, granting a privilege is rather different to securing a right. To do such a thing was also anathema to the Framers, and would be fundamentally incompatible with a constitution even if they had wanted them granted.

Again, belief, not argument or fact. The Framers knew quite well the implication of patents and copyright, because both had existed well before the creation of the constitution. In fact, there was discussion and analysis of the English system of patent and the Framers wanted the advantages of such a system without some of the disadvantages. Again, they knew quite well that they were granting a monopoly for a limited period of time and they knew the implications of that monopoly. Thomas Jefferson was so concerned about the right being secured by the language that he suggested the monopoly should be monitored to see if it was too liberal. Difficult to be more clear than that.

If you wish to argue regarding "promoting the progress," okay, fine. But arguing "exclusive right"? Jefferson and Madison knew exactly what they were doing.

Crosbie:

'Exclusive right' means the right the author already has (in nature) to exclude others from their writings.

It does not mean the author (or even congress) can deny any right of others.

You state in your later post that you present arguments, not beliefs. I submit that the two statements above are purely belief and are not arguments.

Monopolists would certainly love the latter meaning, but the constitution was drawn up to protect/secure individuals' rights, not to deny or suspend them, nor to create a transferable privilege that denied them.

Yes, the constitution was drawn up to protect and secure individual's rights, but it was also drawn up to define the limitation of government. One such limitation included the ability to provide for exclusivity of copyright and patents. You may attempt to subvert the intention with your own interpretation, but that is still not an argument, but a belief.

Copyright is such a privilege, and so it is a contradiction in terms for a privilege to represent the securing of an author's exclusive right to their writings.

Pardon me, but did you miss a step in your writing? Copyright is a privilege secured by the constitution, and it DOES represent the securing of an author's exclusive right to their writing for a limited time. Again, you do not present an argument, but an interpretation or belief.

The constitution is indeed quite clear, so it takes a deal of linguistic misinterpretation to infer it sanctioned the granting of monopolies (that were, unforeseeably to the Framers, unconstitutionally granted a few years later anyway).

Wait a moment. Most of the Framers of the constitution were alive when the first copyright was granted ONLY two years after the constitution was ratified. Separately, Rhode Island ratified the constitution AFTER the first patent act. If the Framers truly disagreed with copyrights, which were granted nearly immediately after ratification of the constitution, and patents, which were granted PRIOR to ratification of the constitution, they had plenty of opportunity to rail about the abuse of the constitution. However, they did not. Certainly the Framers were already aware of the the pros and cons of patents, given that the first patents in the area that became the United States may have been granted in the 1600's and given their active discussion of the English patent system.

The first patent act was passed only two short years after the constitution was ratified. Thomas Jefferson then wrote a new act in 1793, after having an opportunity to mull over the constitution and patents. Clearly, had Jefferson been opposed to patents and monopoly, or thought they violated a constitution he helped write, he had a perfect opportunity to weaken the applicability of patents, but he did not. Given Jefferson's earlier concerns about the potential abuses of monopoly, one can only conclude that Jefferson recognized that the constitution literally meant that the fruits of an inventor's labor (and similarly, that of author's), should be secured for a limted period of time to only the inventor or the author. To imply any other meaning would be twisting the language and meaning of the constitution.

Of course, if you have been brainwashed into believing that the constitution sanctions the granting of monopolies you will perceive it to do so (based upon a received, corrupt interpretation).

Of course, you have been eating your own propaganda for so long that you no longer have an unbiased, uncorrupted viewpoint of the brilliance of Thomas Jefferson and the constitution.

Bear in mind that the modern meaning of 'exclusive right' actually comes from the modern interpretation of copyright, not from the Framer's recognition of an author's natural exclusive right. Copyright is the legally granted right (or privilege) to exclude others from reproduction or performance of one's works (hence 'exclusive right') - not the constitutionally recognised right. To suppose that the Framers were specifying the yet to be legislated privilege was to be secured is putting the cart before the horse. The constitution cannot empower congress to secure a privilege yet to be legislated, it can only empower congress to secure the individual's already extant natural rights, i.e. their natural exclusive right to their writings.

It is unfortunate that you continue to put words in Thomas Jefferson's mouth. Jefferson knew quite well what the "exclusive right" would be. He knew quite well that it was in fact a monopoly, because he said so. You may wish to believe otherwise, and belief is a lovely thing, but not supported by the framers of the constitution unless you misinterpret their rather clear statements.

If the constitution was to sanction copyright it would have to give congress power to grant such privileges as monopolies. And, granting a privilege is rather different to securing a right. To do such a thing was also anathema to the Framers, and would be fundamentally incompatible with a constitution even if they had wanted them granted.

Again, belief, not argument or fact. The Framers knew quite well the implication of patents and copyright, because both had existed well before the creation of the constitution. In fact, there was discussion and analysis of the English system of patent and the Framers wanted the advantages of such a system without some of the disadvantages. Again, they knew quite well that they were granting a monopoly for a limited period of time and they knew the implications of that monopoly. Thomas Jefferson was so concerned about the right being secured by the language that he suggested the monopoly should be monitored to see if it was too liberal. Difficult to be more clear than that.

If you wish to argue regarding "promoting the progress," okay, fine. But arguing "exclusive right"? Jefferson and Madison knew exactly what they were doing.

Well, then let's agree to dispense with belief and restrict ourselves to argument.

What you call my belief, I call my contention.

Your suggestion that the 'ability to provide for exclusivity of copyright and patents', is a limitation of government is what I call a subversion (and a poorly expressed one at that).

A proper limitation of government is to be restricted to the protection of rights, not to be permitted their derogation through the granting of privileges. As Thomas Paine observed, by annulling rights in the majority, privileges leave the right, by exclusion, in the hands of a few - and are consequently instruments of injustice.

The constitution cannot empower congress to secure privileges that are legislated after it (beyond its knowledge) - for it to do so it would have to first legislate the privilege (the constitution recognises rights to be secured, not privileges to be granted). And privileges unlike rights are not secured, but enforced (by the holder of the privilege). As an aside, if the constitution had truly intended copyright to be enacted and enforced by congress, it would have been a matter for the police rather than the privileged to protect.

I am aware that copyright and patent or analogues thereof were already legislated/granted in various states at the time of the Constitution. That many would have those privileges continue doesn't enable the Constitution to recognise them. It was necessarily a clean slate, could not refer to pre-existing privileges (or any other legislation), and so had to restrict itself to the securing only of authors' and inventors' natural exclusive right to their writings and designs.

I appreciate that it was the keenness to see those monopolies re-enacted that persuaded such a lax interpretation of the constitution.

It is widely recognised that Jefferson disparaged patents, so I'm doubtful that Jefferson was the driving force in their enactment - as opposed to a moderating influence. Madison seems far more likely as their true champion. Perhaps you can cite clear evidence that Jefferson had a change of heart and switched from antipathy toward patents into enthusiastic advocacy?

You say that the Framers knew they were granting a monopoly. However, although perhaps some of them may have believed the clause in the constitution empowered congress to grant such monopolies, it didn't actually do so. It only empowered congress to secure the pre-existing natural exclusive right, not to create a privilege that would later be termed as such. A constitution cannot specify the securing of a privilege that has yet to be legislated.

A constitution empowers a government to protect the people and their rights. It cannot, even if it wanted to, empower a government to create privileges that derogate from those rights.

Crosbie:

Amazingly good post. My congratulations, sir. You avoided belief and substituted questions posited in a thoughtful and probing way. Indeed, had I seen the post you just made, I likely would not have commented on it because it is more exploratory and analystical than judgmental and expository. I wish all posts on this site were similarly as well written.

Having given you my congratulations, I attempt to respond, where I am able.

Your suggestion that the 'ability to provide for exclusivity of copyright and patents', is a limitation of government is what I call a subversion (and a poorly expressed one at that).

I know you call this ability a subversion. I respect your description, though I disagree with it. I concur with Thomas Jefferson's opinion on the subject.

It is widely recognised that Jefferson disparaged patents, so I'm doubtful that Jefferson was the driving force in their enactment - as opposed to a moderating influence. Madison seems far more likely as their true champion. Perhaps you can cite clear evidence that Jefferson had a change of heart and switched from antipathy toward patents into enthusiastic advocacy?

Actually, both Madison and Jefferson had concerns about patents. Regardless, I offer the following evidence that shows some of Jefferson's state of mind and his eventual opinion about patents:

(1) "Jefferson, who called the Office "the Board of Arts" took pride in this duty and gave personal consideration to every application for a patent that was filed between 1790 and 1793. He hoped to be as fair as possible in his administration of patents and to try to develop a system that worked for the benefit of all both inventors and the common man. The system had to work in such a way as to foster invention without making new inventions untouchable to the people." From http://www.earlyamerica.com/review/winter2000/jefferson.html

(2) "He "agreed that inventors should have full rights to their inventions" but worried about the constitutionality of patents and that patents would delay the arrival of new inventions to the public. And, he believed that the "abuse of frivolous patents is likely to cause more inconvenience than is countervail by those really useful." (As cited in McLaughlin, 1998)."

Note here that Jefferson was well aware the patents provided a monopoly to inventors. He knew precisely what "exclusive right" meant to both inventors and to the public. He was concerned about the exclusive right.

(3) Jefferson, always the scientist, warmed to his duties and became more open to the idea of patents when he saw how many inventors put forth their ideas as a result of the new system of protection, claiming that "it had given spring to invention beyond my conception." (As cited in Malone, 1951).

(4) This bill [referring to the 1836 patent bill] was the basis of our patent system until contemporary times. Jefferson's hand and influence giving protection to the inventor but access to the user, as well as the utility of the invention are still benchmarks of the United States Patent Office. He truly, should be recognized as a "Father of Invention."

(5) "Jefferson's rationale for requiring filing and publication of the patent certificate in every judicial district was to give the public "notice of the thing invented . . . in terms sufficient to point out the general nature thereof, and to warn others against an interference therewith." From http://74.125.95.132/search?q=cache:c2ZUAn-1DRcJ:etext.virginia.edu/journals/EH/EH40/walter40.html+%22thomas+jefferson%22+opinion+of+patents&cd=1&hl=en&ct=clnk&gl=us

Note that Jefferson again was clear regarding the rights of inventors.

(6) "The Act of 1793 was materially different from the bill Jefferson had proposed, although it did contain a number of the new provisions he had sought. Specifically, patents would henceforth issue on payment of a set fee into the Treasury; the petition would be for an exclusive property right in the invention..." ibid.

Interestingly, one single provision of the Act of 1793 appears to have caused Jefferson to return to his earlier opinion regarding the dangers of patents. After all the effort that Jefferson expended in getting a patent act passed, and balancing the needs of society with the rights of the individual, the Act of 1793 became an act of registration rather than an act of examination, and the result was the patents were automatically granted, which Jefferson thought was wrong. Jefferson knew that the automatic granting of patents would cause unnecessary lawsuits and would reduce the benefit of new inventions. It also appears that Jefferson may have been at least partially responsible for turning the act into one of registration rather than examination, but I am unsure about that.

Jefferson was initially opposed to patents. Later, he became a supporter when he realized the number of inventions being revealed quickly that would benefit society faster than if patents did not exist. However, after the Patent Act of 1793, Jefferson returned to being opposed to patents. Fortunately, the Patent Act of 1793 was replaced by the Act of 1836, which returned the requirements for examination and made obtaining a patent much more difficult. I am sure Jefferson would have approved.

Lonnie, your nonsense is just as unbelievable when you post as "anonymous" as when you sign your name to it, so anonymity (or sockpuppetry -- yes, I *can* read your mind! I can see the rusty gears turning) won't help you in your futile endeavor to convert the people at this site into patent-loving wackos.

Thomas Jefferson, in particular, was indisputably patent-hostile. In particular, he penned this:

"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. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."

Beeswax:

The quote you cite is prior to his turn as the head of the patent office, when he was undisputably for patents, as has been extremely well documented, as pointed out in the comments provided in the posts above.

You may readily learn this for yourself from multiple cites.

Incidentally, if all you have to offer in response to facts is foul-mouthed, pejorative rhetoric that is merely intended to insult and defame the opinions of others, I will not bother to respond to future posts of yours.

Silvio Bedini notes that in 1787 Jefferson's opposition to monopoly in any form led him to oppose patents.[Silvio Bedini, "Godfather of American Invention," Smithsonian Book of Invention," (Washington, D.C.: 1978), 83.] But by 1789, Jefferson's firm opposition had weakened. Writing to James Madison, Jefferson said he approved the Bill of Rights as far as it went, but would like to see the addition of an article specifying that "Monopolies may be allowed to person for their own productions in literature, and their own inventions in the arts, for a term not exceeding --- years, but for no longer term and for no other purpose."[Jefferson to James Madison, August 28, 1789, PTJ, 15:368.]

Beeswax:

My apologies...the letter you quoted was written after the passing of the Patent Act of 1793, which again changed Jefferson's mind regarding the value of patents.

Jefferson also said, in the same letter:

"Society may give an exclusive right to the profits arising from them [inventions], as an encouragement to men to pursue ideas which produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody."

I also find the article "Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent 'Privilege' in Historical Context" to be nicely objective in pointing out that patent law developed with guidance from natural rights objectives. This same paper also provides a good discussion of the difference (or lack thereof) of patent privilege and patent rights.

The proposal to add monopolies in the bill of rights amendment demonstrates Jefferson's recognition that patents were unconstitutional.

How better to have patents recognised as distinct from the inventor's natural exclusive right to their designs, by properly putting them in an amendment where they are clearly described as monopolies?

That way, as with alcohol prohibition, the amendment can be rectified, and patents more easily abolished.

You can't abolish natural rights, but you can abolish privileges, monopolies.

While it should be clear that Jefferson recognised that the monopoly of patent wasn't sanctioned by the constitution. What may yet be argued is whether by adding them to the bill of rights he hoped to bolster their legitimacy, or sow the seeds for their abolition. I suggest it was the latter.

Madison also recognised that patents were unconstitutional, hence why he declined the addition of monopolies to the bill of rights. He knew the patent legislation would be undermined were it to be explicitly recognised as a monopoly instead of assumed to be the natural exclusive right recognised by the constitution. Madison knew as well as Jefferson, that the constitution couldn't explicitly give congress the power to grant monopolies, but then that would also apply to an amendment (which would thus be short-lived, taking patents with it).

Hence the only reason for adding monopolies to the bill of rights was to enable them to be repealed.

An accurate timeline of any evidence for Jefferson's support of patent legislation (as opposed to efficient administration), could shed light either way - as to Jefferson's motives.

I'll check out that 'Who Cares' article. Ta.

Crosbie:

You bring up a point I had not previously considered, that Jefferson set up patents so that they could be easily removed from the system. However, considering his remarks from the era, that makes sense. He said that patents [and copyrights, I think] should be monitored to assure they would not be abused.

It is unquestionable that Jefferson, regardless of whether he was supporting patents or arguing against them, was always concerned about them and their potential for abuse. He especially railed against the passage of the 1793 Act, which essentially rubber-stamped patents.

I should also point out that while Jefferson recognized that the possibility of gaining patents might motivate some inventors (he was unconvinced until he saw how the initiation of the patent system seemed to achieve a positive, beneficial response), he did not personally believe patents were necessary. This difference seems at odds, but I do understand it. He supported patents because of the societal benefit of patents, but he was not personally motivated by them. It takes a great individual to place his personal beliefs second in favor of a system that seemed to have a chance to motivate others to take action - in this case invent or write.

The articles I linked to above (let me know if any of the links do not work - I will see what I can do), clearly indicate that "natural rights" were in fact integral to development of the first patent laws. I find the link between "natural rights" and patent law interesting, since modern interpreters of "natural rights" seem to think they are antithetical, or at least incompatible. However, it is clear that when patent laws were being developed that "natural rights" were integral to the development. Interesting reading.

It is nice to see there is at least one person on this site with an open mind.

"...our laws, indeed, our society, has deemed that such contracts are in fact inheritable..." I'm not sure I understand your beliefs. Are you suggesting that when my grandfather was bound by a mutually and voluntarily agreed contract that he should give 2 tons of apples to a particular family and he gave them only one, am I bound by the same contract and required to get one more ton of apples for them or the alternative is to move a certain distance away from the family and then I'm no longer bound by the contract?
Samuel:

Interesting question. The answer depends on who inherited you grandfather's assets. Under most laws, contracts entered into prior to the death of an individual are generally enforceable on the executor or on the heirs, unless there is a provision in the contract that would exempt performance. Such an exemption would automatically occur for a service, such as a hair cut, but for delivery of product, the contract would usually remain in place. The requirement would be irrelevant of where the heirs or executor lived, unless they went outside the jurisdiction, which may be a country, but many and perhaps most contracts are enforceable across national lines. Indeed, contracts are more binding from that viewpoint than intellectual property, since intellectual property is restricted to specific geographic regions, and contracts may not be.

I am sure I am missing details because you have asked a complex question and I am not an attorney. Mr. Kinsella could provide much more detail, I am sure.

Does that answer your question?

No. From what you've said until now it seems to me that your beliefs are based on some interesting ideas, eg. "mandatory contract heritage" and "regional/spatial contract validity" which enable you to claim that it is possible to bind those that are yet to born. I'm not aware that Mr. Kinsella would claim the things you did, so you should be more able to explain your beliefs than he could explain your beliefs.

"*sigh* We are going in circles. Let me try again." - You showed that a libertarian newborn would be outcast from some kind of a twisted fascist society simply because of difference in beliefs. You did not show what or how anything "questions whether Libertarian principles can ever be valid".

Samuel:

So, the United States is a "twisted fascist society" because newcomers are not permitted, by law, to be communists or to create a dictatorship? Is that what you are saying?

Libertarian principles, as I understand them, are frequently contrary to the laws passed by the will of the people (though laws are proposed by the legislature, the members of the legislature are directly elected and are presumed to act in the best interests of the people - though we know that is not always true). What I am saying is that a newcomer will not be permitted to act against the established laws of a society. Since "pure" Libertarianism is contrary to established law, and since it is unlikely the laws will be changed to accommodate Libertarians, it appears the Libertarians will either be perpetually frustrated in their desire to practice their beliefs, or will need to found a society where those beliefs may be practiced. How difficult is this concept to understand?

lol...Though I would not have used the phrase "mandatory contract heritage," I suppose it could be described as that. Contracts do live on. Examples surround us.

Let us take an extremely simple example.

A person purchases a home on contract. In the will of that person, the person leaves all worldly possessions to one or more immediate heirs, though they are yet to be born.

An heir is born.

The person dies, leaving the contract in place.

Now, the heir has one of two options. The heir is able to accept the terms of the contract, in which case the assets bound in the home, along with the obligation to continue payment on the contract, or to create a substitute contract, will be passed on to the heir.

Certainly the heir can refuse the contract, but the heir will also risk a great likelihood that any portion of the house already paid will no longer pass on to the heir - or a lower amount will pass on to the heir.

So, in this case the heir could continue to the terms of the contract and reap the benefits therefrom, or the heir could ignore the contract and lose some or all of the benefits of the contract.

Another simple example.

A corporation is chartered. Ten employees make up the original company. When a newcomer joins the corporation, the newcomer does so knowing the charter of the company and rules of the company, which the newcomer is bound to accept as a member of that corporation. If the newcomer does not like the rules, the newcomer has one of two choices. The newcomer may attempt to change the rules - which is possible, or the newcomer can find some place else to go.

Life is very simple.

Now, you may consider the following example somewhat extreme, but it is reflective of the array of societies on our planet.

Let us say that someone is born in France. Let us say that the newcomer believes that there are wrongs that may be committed against a person so severe that murder is permissible. However, as we know, murder is impermissible in France.

The newcomer has two choices. Either change the law so that murder is permissible in some circumstances, or move to a society where murder may be committed in certain circumstances to avenge a wrong committed against that person or the family of that person. Several such societies exist on this planet, so options are available to that person.

Is the newcomer required to abide by a "mandatory contract heritage"? If the person plan on remaining in France, yes. In fact, we all have "mandatory contract heritage" that we are required, by law, to abide by, or we risk fines, imprisonment, and in some cases, death.

An anonymous coward wrote:

"Jefferson recognized that the possibility of gaining patents might motivate some inventors (he was unconvinced until he saw how the initiation of the patent system seemed to achieve a positive, beneficial response)"

What he saw was an inevitable land-grab that proves nothing. Later inventors were hindered rather than helped, because they had to build on already-patented prior work, unlike those involved in the initial gold rush. This is discussed in greater detail in Against Intellectual Monopoly.

Of course, there have been far more inventors in the centuries since that gold rush than there were during it, simply because the rush was a much briefer period of time, and furthermore population has grown (exponentially) since then.

"It is nice to see there is at least one person on this site with an open mind."

I suspect this is intended to imply that I'm not one.

None of the nasty things that you have said or implied about me are at all true.

I'm not educated about how exactly heritage works nowdays, but it seems unjust to me to force someone to inherit property and debts of someone else even when he doesn't want it. I also fail to see how refusing to enter into a contract (and thus not working for the corporation from your example) or not accepting a heritage (and thus not being able to live in the house) is analogous to being forced to going away a certain distance from those who's contract offer is being rejected.

I agree that if a group of people owns a land, the "newcomer" can't stay on their land if he doesn't accept their contract. That seems to me to be compatible with libertarianism. However if one of the people decides to sell him some land even without agreeing with that "global" contract, I don't see a way how he can be justly forced to go away or accept their "global" contract or suffer violent coercion.

"So, the United States is a "twisted fascist society" because newcomers are not permitted, by law, to be communists or to create a dictatorship? Is that what you are saying?" You provided an example of a "society" that seem quite fascist to me. If USA indeed prohibited simply holding some beliefs, then that would mean I would have to think about it as fascist.

But our discussion was not about holding beliefs, it was about being able to own oneself and some property. You seem to be claiming that if some group of people were in contract with each other that they cannot exclusively and fully control their bodies and some land or property (btw isn't that communism?) and there would somehow appear a newcomer among them with some property or land, they would have a just right to confiscate his property and deprive him of his self-ownership or else he can go "away"? (what distance?). I don't believe that. No one has the right to own somebody else even if 99% of the other people expressed their desire to be his slaves.

If you can't accept that a person owns himself and is able to own a property then of course you can't accept liberty.

Samuel:

A belief is different than a practice. You may believe in ritual murder in the United States, if you like, so long as you do not practice ritual murder. Beliefs are a lovely thing - just be sure that you do not practice them if they violate laws.

You are not "required" to accept land - which might, emphasize might, allow you to avoid accepting the debt. Conversely, refusing to accept the land would also prevent you from obtaining any benefits that might accrue from owning the land.

I agree that if a group of people owns a land, the "newcomer" can't stay on their land if he doesn't accept their contract. That seems to me to be compatible with libertarianism. However if one of the people decides to sell him some land even without agreeing with that "global" contract, I don't see a way how he can be justly forced to go away or accept their "global" contract or suffer violent coercion.

Yet, is this not the condition of citizenship? Are you not required to accept the "contract" of the nation in which you live? If you are saying that you need not accept that contract, meaning that you are free to run red lights and stop signs, go as fast as you wish, regardless of the speed limits set, even drive when society has stated that to drive you must hold a license, then I must respectfully disagree. How can a society exist without the common contract that binds all members of the society together?

Beeswax:

What he saw was an inevitable land-grab that proves nothing. Later inventors were hindered rather than helped, because they had to build on already-patented prior work, unlike those involved in the initial gold rush. This is discussed in greater detail in Against Intellectual Monopoly.

This statement is your interpretation of things that is without evidences.

I have read "Against Intellectual Monopoly," and find the same flawed statements of opinion, that are supported by some anecdotal evidence, but there is just as much anecdotal proof of the value of patents. I am unconvinced by mere statements of belief and position rather than actual statistical evidence.

"It is nice to see there is at least one person on this site with an open mind."

I suspect this is intended to imply that I'm not one.

None of the nasty things that you have said or implied about me are at all true.

I did not have you in mind when I wrote the statement about the open mind. You should not be so paranoid.

Indeed, I fail to see how I could have said anything nasty about you because I was not talking about you at all. In fact, that you thought I was talking about you may indicate something about your ego.

"Yet, is this not the condition of citizenship?..." "citizenship" and "nation" in the sense you're using them are a hallmark of oppression, slavery, fascism or communism or other nasty -isms, because they act not as a contract but rather a violent rule. It is possible for a group of people to live without that and yet be free and have "order" among themselves (using true contracts). Haven't you read the unofficial "set texts"? :)

Mr. Kinsella, it might be a good idea to allow commenting on this site only after one passes a simple "test" of knowledge of a provided short reading list (maybe wikipedia articles would suffice.) Otherwise some people try to act as if they knew nothing about the principles and even the possibility of freedom. :)

Samuel:

It seems as though we are back where we started. What you are fundamentally saying is that all governments are oppressive, fascist, etc. As I previously attempted to point out, what that means is that under all present regimes Libertarianism is not possible. When you are born or move into a society, under the present rules of all societies, you are required to observe the covenants established by the people of that society. You may call these contracts or covenants oppressive or whatever, but they are the rules we live by.

I personally think your position is extreme and unrealistic.

No, I have not read the unofficial "set texts," and neither am I interested in reading them. I have already read many fictional stories and unless there is something of interest to commend them to me I will pass.

Incidentally, I find your reaction to my comments interesting. I present positions that you apparently do not understand or oppose, and your immediate reaction is to violently oppress me by calling for my posts to be blocked. Good job. Some Libertarian you are.

http://www.lewrockwell.com/blog/lewrw/archives/33406.html

"...violently oppress me by calling for my posts to be blocked..." 1.) I said nothing about blocking anyone's posts. Anybody is able to read a few articles and fill out a simple "test". 2.) protecting one's property (ie. a web server) and deciding if and how others may use it is not "violent oppression". You really need to read something about libertarianism before you use the word again ;) You're needlessly ridiculing yourself :)

Samuel:

You clearly stated that posting should not be permitted, i.e., blocked, until after someone has passed a simple test. It was not that long ago that such "tests" were used to prevent African Americans from voting in this country. Such tests have been well established to be violent oppression.

As for "protecting" one's property, doing so with an intent to suppress free speech is clearly anti-freedom, and almost assuredly anti-Libertarian. I am sure you understand these basic concepts.

Until you understand what freedom, censorship and oppression are, you should not use those terms. You are most assuredly ridiculing yourself.

"...prevent African Americans from voting..." - wasn't there a time when this was the will of "the people" and any newcomer was bound to obey these rules, otherwise he was considered a criminal?

"...suppress free speech..." - do you let strangers in your house and let them write on your walls or do you oppress and censor their speech?

Samuel:

"...prevent African Americans from voting..." - wasn't there a time when this was the will of "the people" and any newcomer was bound to obey these rules, otherwise he was considered a criminal?

About ten states, all southern, and mostly smaller states from a population viewpoint at the time the tests were in force, had literacy tests. So, if less than 10% of the population of a nation are under such laws, does that constitute the will of the people? Since the Federal government eventually deemed that these laws were illegal under the consitution, bolstered by the Civil Rights Act, it hardly seems that the laws were legal in the first place. Of course, that meant that enforcing those illegal laws made the enforcers criminals. But, yes, the rules had to be obeyed in those ten states until they were ruled illegal.

"...suppress free speech..." - do you let strangers in your house and let them write on your walls or do you oppress and censor their speech?

On the other hand, if I had a meeting hall and invited people to come speak, most of whom would likely be strangers, would it be reasonable to prevent those with dissenting viewpoints to speak, regardless of how well informed they were? Those in attendance would recognize the limits of knowledge of that person, and conversely, the breadth of knowledge, and weight that person's speech accordingly.

Of course, if I was only interested in mindless yes men who only parroted what I believed, then I would set up a "literacy test" to keep out the unwanted elements, thereby violently suppressing liberty of dissenters in what was supposed to be a meeting hall. But then, my actions would clearly show I was opposed to liberty.

As for inviting strangers in my house, I believe it is a given that strangers and friends alike should not be writing on the walls in my house. On the other hand, all are free to write on the 2 meter by 3 meter sheets of paper set up for that purpose - regardless of their viewpoint and regardless of whether I agree with them.

Alonniemouse writes:

"Beeswax:

This statement is your interpretation of things that is without evidences."

No, there is plenty of evidence and reason. Much more evidence is in Against Intellectual Monopoly.

"I have read "Against Intellectual Monopoly," and find the same flawed statements of opinion, that are supported by some anecdotal evidence, but there is just as much anecdotal proof of the value of patents."

Wait until you've mastered third-grade reading comprehension, and then read Against Intellectual Monopoly again. Perhaps then the rest of it will sink in, that you evidently missed the first time around, or did not understand.

"I did not have you in mind when I wrote the statement about the open mind. You should not be so [insult deleted]

Indeed, I fail to see how I could have said anything nasty about you because I was not talking about you at all. In fact, that you thought I was talking about you may indicate [implied insult deleted]."

No, you're the crazy one.

None of the nasty things that you have said or implied about me are at all true.


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