Against Monopoly

defending the right to innovate

Monopoly corrupts. Absolute monopoly corrupts absolutely.

Copyright Notice: We don't think much of copyright, so you can do what you want with the content on this blog. Of course we are hungry for publicity, so we would be pleased if you avoided plagiarism and gave us credit for what we have written. We encourage you not to impose copyright restrictions on your "derivative" works, but we won't try to stop you. For the legally or statist minded, you can consider yourself subject to a Creative Commons Attribution License.



I've argued in the past that we should both get rid of patents and the FDA. Without the FDA, the problem of having to reveal the secret of a new product in order to get approval is gone. And the FDA does more harm than good anyway. This would seem to confirm that. It's hard to imagine that any benefit from their having kept unsafe drugs off the market will justify their preventing the development of new antibiotics in the face of increasing bacterial resistance. In this case the road to hell may literally be paved with good intentions.


There are several issues in that linked article. The one I want to comment on is the article's statement that no new antibiotics have been developed for decades. What the articles does not point out is that there are three new classes of antibiotics that have been developed and approved for use in the last decade.

One of these is Daptomycin, also called Cubicin. This antibiotic has been on the market since 2003. Lilly ceased development on the drug because of severe side effects in some patients, not because of the FDA. The drug is currently produced by licensee Novartis.

The second new antibiotic is Tigecycline, approved for use in 2005. This antibiotic has shown effectiveness against the so-called superbug.

The third new antibiotic is Linezolid, approved for use in 2000.

So, when the article claims that no new antibiotics have been developed for "decades," I guess they mean with the exception of the last ten years.

Well David you got it half right. The FDA is an unconstitutional usurpation of power by the Federal Government. The Patent system is constitutionally mandated private property right, Article, 1, Section 1, Clause 8.
No Dale, you're just re-iterating the wishful thinking of the majority of monopoly lovers and lobbyists.

See An Author's Exclusive Right.

Here's a recent comment of mine translating Madison's pitiful argument for a clause that did not, but he would insinuate did, empower Congress to grant monopolies: copyhype.com/2010/09/copyright-and-the-constitution/#comment-53.


Apparently Dale is not the only one under the delusion that the Constitution empowers Congress to grant limited monopolies. The U.S. Supreme Court, the watchdog for constitutional issues, heard arguments related to this clause (more than once, but the case referenced below seems to be the most recent) and said, yes, the Constitution does grant Congress the right to grant monopolies.


Anonymous, [09/30/2010 11:32 AM]

The Constitution grants Congress no right. It limits power provided to Congress by the people.

The Constitution does not empower Congress to grant monopolies.

I'm aware that many want to believe it does, but that doesn't constitute evidence or argument.

How do you make the leap from 'securing the right' to 'granting monopolies'?

And please quote what you believe to be pertinent (if you're not afraid to infringe copyright) rather than link to a vast text.

As Lysander Spooner pointed out in his great tract No Treason: The Constitution of No Authority, that document has no legal validity whatsoever. It's just a way for the criminal class known as government to steal property, grant state-controlled monopolies (which patents and copyrights are), justify mass murder, and do 1001 other criminal acts. No wonder lawyers like it.

The case is not that long and since it firmly establishes that copyright and patents are in accordance with the Constitution, it is worthy of reading. Since the Supreme Court not only solidly affirmed the reading of the Constitution, but did so with solid majority, the only way to eliminate copyright and patents, or to even amend them, is by congressional action.

The suit was brought under two theories:

Petitioners, whose products or services build on copyrighted works that have gone into the public domain, brought this suit seeking a determination that the CTEA fails constitutional review under both the Copyright Clause's "limited Times" prescription and the First Amendment's free speech guarantee.

Some tidbits from the case:

Held: In placing existing and future copyrights in parity in the CTEA, Congress acted within its authority and did not transgress constitutional limitations. Pp. 7 31.

Throughout the court's decision are references to the Constitution's grant of power to congress to enact copyrights and patents, but one of the most definitive paragraphs is:

(3) The "congruence and proportionality" standard of review described in cases evaluating exercises of Congress' power under §5 of the Fourteenth Amendment has never been applied outside the §5 context. It does not hold sway for judicial review of legislation enacted, as copyright laws are, pursuant to Article I authorization. Section 5 authorizes Congress to "enforce" commands contained in and incorporated into the Fourteenth Amendment. The Copyright Clause, in contrast, empowers Congress to define the scope of the substantive right. See Sony, 464 U.S., at 429. Judicial deference to such congressional definition is "but a corollary to the grant to Congress of any Article I power." Graham v. John Deere Co. of Kansas City, 383 U.S. 1, 6. It would be no more appropriate for this Court to subject the CTEA to "congruence and proportionality" review than it would be to hold the Act unconstitutional per se. Pp. 27 28.

2. The CTEA's extension of existing and future copyrights does not violate the First Amendment. That Amendment and the Copyright Clause were adopted close in time. This proximity indicates the Framers' view that copyright's limited monopolies are compatible with free speech principles. In addition, copyright law contains built-in First Amendment accommodations. See Harper & Row, 471 U.S., at 560. First, 17 U.S.C. § 102(b), which makes only expression, not ideas, eligible for copyright protection, strikes a definitional balance between the First Amendment and copyright law by permitting free communication of facts while still protecting an author's expression.

The First Amendment securely protects the freedom to make-or decline to make-one's own speech; it bears less heavily when speakers assert the right to make other people's speeches. When, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.


Regarding your comment:

"And please quote what you believe to be pertinent (if you're not afraid to infringe copyright) rather than link to a vast text."

The decision is a Supreme Court decision and is therefore not covered by copyright.

Anonymous27, irrespective of the Constitution's validity, the issue is whether it could and did empower Congress to grant monopolies.

Anonymous, [09/30/2010 05:33 PM]

Given the case assumes Congress was empowered to grant copyright, it's not surprising it will be exhibited as assumption throughout. It is not questioned.

The closest anything you've quoted comes to the issue is the assumption that the clause "empowers Congress to define the scope of the substantive right", which is of course spontaneous inveigling of additional power.

Nature defines itself. We can observe and note that definition, but that doesn't give us the power to redefine nature, to define the power we covet as natural.

Thus we have 'to define' as meaning 'to observe the definition of' and 'to define' as 'to arbitrarily define the power we covet'.

A dictionary defines the meaning that words have. It does not have the power to choose the meaning it desires words to have - though it of course is in the position to assume such power.

Defining the scope of a natural right (that should be self-evident) cannot magically leap into the grant of a monopoly that derogates individual liberty. A right is naturally limited. It ceases to be a right and becomes a privilege if it is given an unnatural scope such that an individual's reach extends beyond their private domain and into the domain of all others on the planet.

There is no conflict between the author's (natural) exclusive right to their writings, and the individual's freedom of speech. There is thus no conflict between the first amendment and the Progress clause.

The conflict occurs in the granting of copyright (Statute of Anne), the privilege of a monopoly in literary works.

Anonymous, [09/30/2010 05:35 PM]

I doubted that Anonymous [09/30/2010 11:32 AM] was afraid, and it seems they weren't.

In any case, you've got to wonder at law that expects everyone to know what is or isn't covered by it.

Incidentally all you Anonymouses, it would be so much better for everyone if you could pick distinct pseudonyms.


The question was asked as to Congress's authorization to change the terms of copyright. The scope of Congress's ability was previously decided, as was pointed out in the suit. Several cases were citing that date back to the 1800s. Was there an assumption? Do you assume a decided question or merely point out it was already decided?

Your comment:

"Nature defines itself. We can observe and note that definition, but that doesn't give us the power to redefine nature, to define the power we covet as natural."

Of course nature defines itself. We do not define nature, we only define the terms of our society. One of the benefits of modern society is that you have freedom to try to modify that society, within the constraints established by that society. If you do not like your society, you may choose another.

Your comment:

"A dictionary defines the meaning that words have. It does not have the power to choose the meaning it desires words to have - though it of course is in the position to assume such power."

A dictionary does not, as you say, define the meaning that words have. We, meaning the people in the society, define the words. The dictionary merely reports those definitions. I would provided examples, but you already know far more than I have the time to list. A dictionary could theoretically choose a different definition than that dictated by usage, but one would have to wonder how long that dictionary would last.

Your comment:

"Defining the scope of a natural right (that should be self-evident) cannot magically leap into the grant of a monopoly that derogates individual liberty."

I find the concept of "natural rights" troubling. Why? Because I have read many articles that attempt to define the origin of natural rights and what constitutes natural rights and it appears that there is little agreement as to either the origin or constitution of them. One would infer from the nature of "self-evidence" that natural rights would be readily defined by any human society because all societies would or should naturally define their society around such rights, or tend in the direction of those rights. However, that is not true. Different societies have had different opinions about what constitutes a "natural right," which means that any such "self-evidence" is in fact subjective rather than objective and thus there is only natural rights in context and not a universal natural right.

If natural rights are subjective, then it follows that the definition of a monopoly would or could similarly be subjective.

Your comment:

"In any case, you've got to wonder at law that expects everyone to know what is or isn't covered by it."

Then, you must wonder at all laws. Correct? Ignorance of the law is no excuse. "Officer, I did not know the speed limit was 35." Bummer.

One of the most interesting laws (and difficult to understand how it can be applied - but is) I have encountered is the FCPA, or the Foreign Corrupt Practices Act.

If a company based in Brazil pays a bribe to an official in Morocco, where such bribes are considered a customary part of doing business, and the bribe is not against the law in either country (and many third world countries either do not have laws against bribery or, if they do, they do not enforce them), then no one bats an eyelash.

If, on the other hand, a Brazilian subsidiary of a U.S. company pays a bribe to an official in Morocco, the U.S. company is in violation of the U.S. FCPA law and the parent company is now in trouble with the federal government. Go figure. It can make doing business in different societies with their own "natural rights" and customs difficult.

The New Anonymous on the Block,

The reason the Constitution can only refer to natural rights is that unnatural 'rights', properly termed privileges, haven't yet been granted/legislated (in the Constitution's virgin context). The Constitution can either empower Congress to grant specific, well defined privileges (and only ethically in those peculiar cases in which such a privilege does not constitute an injustice, e.g. seizing the property of a wartime enemy) or it can empower Congress to secure the (natural*) rights that already exist.

If it is self-evident, a natural right is obviously not subjective, e.g. "Those who discover cures for diseases have a 'natural right' to shared ownership of all swans", or "People have a 'natural right' to sell their left-handed children into slavery", or "A man has a 'natural right' to mate with any as yet unclaimed woman irrespective of her will".

The preposterous notion that authors have "a 'natural right' to prevent anyone competing with them in the manufacture of copies, derivatives, or public performance, of their works" is similarly subjective nonsense. However, it is self-evident that an author has a natural exclusive right to their writings, a natural power and thus right to exclude others from the writings in their exclusive/private possession. The Constitution can only empower the securing of this natural right, not the coveted privilege. So Congress cannot grant/legislate any goddamn privilege it fancies, call it an 'exclusive right', and then claim this constitutes its securing per inferred empowerment to do so. Well, it can if no-one's paying close attention - just as an unscrupulous dictionary could redefine 'right' as 'protection granted and defined by the state' and 'natural right' as 'imaginary nonsense on stilts'.

It depends whether you recognise the Constitution as a charter by which a society of individuals empower a government to protect their natural rights, or whether you just see it as a state's enumeration of assurances, concessions, and privileges it's prepared to give its otherwise servile and disposable subjects.

Anyway, this is all academic. It's only going to be a pertinent argument when the pressure grows for copyright to be abolished. At that time in the near future people will be a little more open to the idea that the Constitution empowered only the securing of the natural exclusive right, not the granting of a monopoly.


* The natural qualifier was both inappropriate (since unnatural rights hadn't yet been granted) and superfluous (the use of 'right' as an abbreviation for 'legislatively granted right' has only developed thanks to our familiarity with that use by lawyers/lobbyists hoping to fool people into equating privileges with rights).


I believe you have seen my point. In fact, you enumerated aspects of my point.

The Supreme Court has ruled on the contitutionality of copyrights and patents (interestingly, their analysis of copyright actually depends from patents; at least, I found that interesting). At this point, the Supreme Court would have to reverse 200+ years of rulings that affirmed and then reaffirmed the ability of congress to enact copyrights and patents. Or, which is more likely (though only marginally so, since there is little or no societal push to eliminate either copyrights or patents), congress would have to amend the laws to eliminate copyrights and patents.

I doubt that copyright will be eliminated any time soon, if ever. I do believe copyright restrictions will be reduced and I believe it is likely that copyright terms will be reduced. I think copyright is too entrenched in our society and the world to be completely eliminated.

As for the purpose of the constitution, a discussion of what the constitution does would really spin this thread out of control. I doubt there is more than a double hand full of people who know enough about the constitution to be able to debate the constitution; I am one of those ignorant people.

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