
Monopoly Lawyers Shouldn’t Write Monopoly Laws  - Uncle_Sam
http://torrentfreak.com/monopoly-lawyers-shouldnt-write-monopoly-laws-110417/
======
grellas
Lobbying and lawyers are one thing; ideas are another. Over time, the force of
an idea is what carries the day, one way or the other, not short-term tactics
aimed at pressuring politicians, distorting facts, or putting it over on the
public.

This particular debate - that is, whether a society should confer monopoly
rights for the benefit of inventors and authors - happens to be several
centuries old.

An extremely articulate proponent for the anti-monopoly view was none other
than Thomas Jefferson. Here is what he wrote to Isaac McPherson in 1813:

"That ideas should freely spread from one to another over the globe, for the
moral and mutual instruction of man, and improvement of his condition, seems
to have been peculiarly and benevolently designed by nature, when she made
them, like fire, expansible over all space, without lessening their density in
any point, and like the air in which we breathe, move, and have our physical
being, incapable of confinement or exclusive appropriation. Inventions then
cannot, in nature, be a subject of property. Society may give an exclusive
right to the profits arising from them, as an encouragement to men to pursue
ideas which may produce utility, but this may or may not be done, according to
the will and convenience of the society, without claim or complaint from any
body." (see the full text of the letter, which is well worth reading in its
entirety, here: <http://www.temple.edu/lawschool/dpost/mcphersonletter.html>)

This is a philosophical argument against the idea of patents generally,
beautifully expressed.

In his day, Jefferson lost this argument and the framers of the U.S.
Constitution added Article I, section 8, clause 8, which provides that the
Congress shall have 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." This was followed by
enactment of the first U.S. Patent Act in 1790 and by an unbroken body of law
ever since upholding patents with a vigor that is quite remarkable.

Today, patent and copyright laws are once again being re-examined from a
philosophical perspective. Is it really true that monopoly grants of this type
add value to a society by fostering creative activity? Do such laws truly
benefit deserving persons or do they mainly promote the interests of faceless
corporations and opportunistic trolls? Is it honest to call it "intellectual
property" if this merely begs the important underlying question whether
intangible rights (really, exclusive-right or monopoly grants) of this type
should even be recognized by law?

These are legitimate questions and the debate is a serious one. But there is
also a very legitimate argument on the other side of this debate, what might
be called the overwhelming majority position of the past two centuries that
has favored patents and copyrights. That argument was certainly not lost on
the nearly 7,000 authors, professors, and other persons of all non-lawyer
ranks in society who filed such strong objections to the proposed Google book
settlement based on threats to their copyright interests as to cause the judge
to reject it. Nor is it lost on the major technology companies who continue to
file patents in great number even as they advocate against frivolous patents
(see, e.g., the "Latest Patents" site, which duly notes a large number of
patent filings by Google made with great frequency:
[http://www.latestpatents.com/google-patent-applications-
publ...](http://www.latestpatents.com/google-patent-applications-published-
on-14-april-2011/)).

While there is obviously an aspect to this debate that involves lawyers,
lobbying, and circular logic, those issues are in my view at the fringes of
the debate, and it hardly promotes careful analysis to bring them front and
center and to say that this is all that is involved in the fight. A
superficial attack of this type is really no more defensible as a way of
advocating a position than is the use of circular logic that is being
criticized in the piece itself. Much more depth is needed to get to the most
important issues at stake.

~~~
tzs
I don't quite see how you can say article I, section 8, clause 8 represents
Jefferson losing the argument. In the quote you provide from Jefferson, he
says:

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

Isn't article I, section 8, clause 8 embodying just what Jefferson said a
society may do? Or are you distinguishing it from what Jefferson wrote because
he specifically mentions profits, whereas article I, section 8, clause 8
allows Congress to give the inventors "exclusive Rights", which perhaps goes
farther than profits?

Under a Lockean type of philosophy, which is what the majority of the Framers
followed, a man was entitled to own the fruits of his labors, including mental
labors. If the Lockeans had won, inventions would be property of the inventor
forever. Article I, section 8, clause 8 implicitly rejects the Lockean view by
only authorizing a limited monopoly.

------
sunchild
Why does OP expect the cost of defending a lawsuit to be at least thousands of
dollars? Presumably because OP isn't a lawyer, and thinks: (1) it isn't cost-
effective to learn to defense him/herself and (2) he/she would need to hire a
lawyer to handle the court procedures and substantive arguments.

I reject the OP's delineation of business vs. legal outright. If you're doing
business on the web, you need to be able to defend yourself against C&D
letters. Whether that means going to trial, settling the claim or calling the
letter writer's bluff: you need to be able to do all three.

~~~
jbooth
If you're going anywhere near a courtroom, or even anywhere near a mailbox
where you would be mailing pieces of paper to a courtroom, you're into
thousands of dollars. 10 relevant documents to be filed * 200 an hour = $2k,
just to get out of the gate. Plus a couple hours of consultation, and a few 15
minute charges when they call you to confirm the spelling of your last name.
Yes, they just did copy/paste on those docs, and yes, that's bullshit to bill
you like that, but that's how lawyers work. The OP was lowballing it, even.

~~~
sunchild
I was arguing for avoiding lawyers altogether by learning the subject matter,
the court procedures, and handling matters for yourself. Court filing fees are
tiny. The cost of your time is the biggest cost, unless you already know
copyright rules and how to handle a pro se defense. It's not rocket science.
If you don't want to pay a lawyer, then do it yourself.

What part of my post did you think invited an attack on lawyers generally?
IAAL, so I'll just ignore the fact that you missed the point entirely, and
move on.

~~~
jbooth
The premise of the article is that you think it's a credible threat of a
lawsuit, either because the person's crazy or the law's really broken.

If it's the type of C&D letter that you can laugh at and publicly post a silly
retort to on the internet for the lulz, then yeah, go right ahead. Court
filing fees may be tiny but screwing up a lawsuit because you didn't take
Civil Procedure is expensive. You're saying you're a lawyer downthread.. would
you really recommend DIY for any non-lawyer in any real case?

~~~
sunchild
You keep putting lawyers up on pedestals and then trying to knock them down.
Your question to me implies that lawyers are such specialists that you could
never be expected to do their job. You do realize that law school teaches next
to nothing about the actual practice, right? The rest is learned by doing. In
most courts around the world, you have the right to defend yourself. If you
think your time is worth more than a lawyer's, then pay a lawyer. The whole
victim routine is tired.

------
Roritharr
This pattern of circular logic for justification of presence is what enabled
aristocracys to exist even in times where they were clearly better options.

I think its a human error to allow such behavior, but one whose results will,
given enough time, be detected and corrected.

In the case of monopoly laws its worse in the us than europe, because our
legal system only asks you to pay for your defense in the event of you losing
the trial.

------
CallMeV
But perhaps they could be paid with Monopoly money.

------
tzs
His first assumption is wrong, at least for the US. Yes, lawyers are involved
in lobbying for and suggesting the text of laws. However, lawyers that
represent all sides are involved, and non-laywers can lobby just as well as
lawyers.

The rest of his argument is essentially that obeying the law costs him money
as an entrepreneur if he gets caught, and so the things he wants to do should
not be illegal.

~~~
rlpb
> non-laywers can lobby just as well as lawyers.

Lobbying costs money. Using the same sort of analysis as in the article, it's
easy to see that the available funds for lobbying are heavily biased in one
direction.

~~~
tzs
By that analysis, we'd expect in the US most lobbying on abortion law to be on
the pro choice side, yet in practice there is a tremendous amount of lobbying
on the pro life side.

Or look at business vs. labor issues. Again, heavy lobbying from both sides.

How about health care? Massive lobbying from all sides.

Environmental regulation? Same.

Immigration? Same.

~~~
jbooth
Actually, in all of those cases it's the people with the most money. On
abortion in particular, you've got a silent majority and an extremely vocal
minority. I'm pro-choice and have never donated to planned parenthood, not
because I don't support them, but just because I'm not that motivated on the
subject.

Business vs labor, I'm not going to bother to try and write a thesis tracking
down the funding but I would suspect that there's more money on the business
side. Heard of "Americans for Prosperity"?

Same with healthcare. Note that Obama spent significant effort courting the
health insurance lobby for his bill, combined with a little courting of labor
and no courting of consumer advocates.

Environmental regulation? The oil industry vs Sierra Club? Please.

Immigration, I'm not even familiar with the sides involved, the minutemen
don't seem organized enough to lobby effectively.

~~~
tzs
Note that in most of those cases, the side that you attribute the most
lobbying to is the side that is trying to reverse current law. The pro lifers
are trying to reverse the current pro choice laws. The oil industry is trying
to get rid of environmental regulation.

Under the article's thesis, we'd expect most of the lobbying to be from the
supporters of the current laws, trying to strengthen them.

~~~
jbooth
Oil industry's had a few successes, notably a boatload of tax exemptions and
subsidies that were started under the Bush administration.

Given that everyone's talking about the deficit right now, you'd think those
would be on the chopping block, wouldn't you? Wonder why not.

Most of the lobbying is from people who are seeking an outsized return on
their lobbying. Decisions worth billions to an industry can be influenced for
mere hundreds of thousands.

