As reported on Findlaw: “Europe’s top court says patents cannot be filed on stem-cell research using cells from human embryos, a move many scientists say will harm future advances in medicine. In a decision issued on Tuesday, the European Court of Justice in Luxembourg wrote that a process that involves taking a stem cell from a human embryo, resulting in its destruction, cannot be patented.”
Will the state’s courts save us from the state’s laws. Will they. No.
Last week I was a Guest panelist on This Week in Law, Episode 133, entitled “Beyonce, Bad Laws, and Breastaurants.” The two hosts and fellow guest panelist were all lawyers. We had a wide-ranging two-hour discussion about a variety of legal and policy matters, including a number of IP problems covering patent, copyright, trademark, and even trade secret. We also discussed the Occupy Wall Street movement, Apple’s use of IP to squelch clones and competition, copyright threats against Beyonce for her dance moves, and many others as indicated by the links on the episode’s show notes.
The video is below; it’s also on the TWiL page for this episode; you can also subscribe to the audio or video podcast for this show; here’s their FaceBook page.
A few more backup links and points below about some of the issues discussed.
At one point we got into a discussion of Obama’s use of a signing statement to approve ACTA as an “executive agreement” (see ACTA, Executive Agreements, and the Bricker Amendment), I noted that under international law, violation by a host state of the citizen of another state gave rise to a right for the violated citizen’s home state to use military force against the host state. I remarked that one danger of internationalizing intellectual property by means of executive agreements and treaties is that it could give western nations an excuse to military force against countries that allow piracy. However, this was a bit of an overstatement since, as I explain in International Investment, Political Risk, and Dispute Resolution: A Practitioner’s Guide (see this excerpt), this type of “gunboat diplomacy” is ostensibly no longer permitted since the founding of the UN in 1945: “Today, some investors hailing from militarily and politically powerful States might favor the threat or use of force to obtain restitution or compensation for expropriated property. Such an option is no longer available, however, due to fundamental changes in international law and politics. In particular, the United Nations Charter has since 1945 prohibited the use of force to resolve disputes, except in the case of self-defence. Today, it is generally accepted that a State may not use force against another State in response to a taking of the property of one of its nationals.”
The quote I mentioned about the problem with making law by legislation is by James Carter, who wrote, in 1884, in opposing the attempt to codify New York’s common law:
At present, when any doubt arises in any particular case as to what the true rule of the unwritten [i.e., judge-found, common-law developed] law is, it is at once assumed that the rule most in accordance with justice and sound policy is the one which must be declared to be the law. The search is for that rule. The appeal is squarely made to the highest considerations of morality and justice. These are the rallying points of the struggle. The contention is ennobling and beneficial to the advocates, to the judges, to the parties, to the auditors, and so indirectly to the whole community. The decision then made records another step in the advance of human reason towards that perfection after which it forever aspires. But when the law is conceded to be written down in a statute, and the only question is what the statute means, a contention unspeakably inferior is substituted. The dispute is about words. The question of what is right or wrong, just or unjust, is irrelevant and out of place. The only question is what has been written. What a wretched exchange for the manly encounter upon the elevated plane of principle!
I mentioned the tension between antitrust and patent/copyright law; more discussion of this issue can be found in endnote 1 here;
Who needs ACTA, when other trade agreements are also exporting the draconian US DMCA-type copyright provisions to other countries? See Declan McCullagh’s CNET column, excerpted below:
President Barack Obama and President Lee Myung-bak of the Republic of Korea at the White House this week.
(Credit: White House)
President Obama called the approval of free-trade agreements with Colombia, Panama, and South Korea this week “a major win for American workers.”
What he didn’t add is that the deals, which were given final approval on Wednesday by the U.S. Congress, are also a major win for the motion picture industry and other large U.S. copyright holders. Other portions specify that consumers can have their choice of computer software, but “subject to the needs of law enforcement.”
You won’t find this highlighted on the administration’s Web site (really, Web sites), but the three free-trade agreements export some of the more controversial sections of U.S. copyright law.
Now Colombia, Panama, and South Korea will be required to prohibit circumventing any “technological measure that controls access to a protected work”–meaning that making a backup copy of a DVD or video game will become illegal, and, depending on the details, a crime as well.
The language of Chapter 18 (PDF), the intellectual property section, does not include the limited safeguards that Americans enjoy. The U.S. DMCA, for instance, allows the U.S. Copyright Office to consider the state of computer technology and create exceptions, a requirement that is not exported to the signatories.
I note that although his “Tabarrok Curve” implies we have “gone too far” and that patent and copyright terms are too long, in a recent discussion, implies the patent term is too low because of FDA delays and thus favors legislation such as the 1984 Hatch-Waxman Act that provide for patent term extension of up to 5 years when there is delay caused by regulatory review, e.g. from the FDA. Tabarrok also seems to think the patent term is 15 years. Howefver, the patent term is 20 years from date of filing, not 15; and since it usually takes 2-3 years4 before it issues, most issued patents have a term of about 17 to 18 years. Does this mean Tabarrok would say that the Patent Term Extension of Hatch-Waxman “goes too far” since, after all, the 17 year patent term is already 2 years longer than Tabarrok seems to think is already too long? One doubts it. Moreover, in the same discussion Tabarrok mentions positively how the US twisted the arm of Australia in 2005 when negotiating a “free trade” agreement to expand its IP protection for pharma patents and also extended its copyright term from life of the author plus 50 years to life plus 70, to match the insane US term. Free trade agreements have nothing to do with local property rights; that is the province of bilateral investment treaties, which are usually negotiated between a developed country and a developing country. So here we have so-called IP reformer who says IP protection is too strong but he gets the term of patents wrong, and things they should be extended, and favors US IP imperialism to force other countries to extend their own copyright terms.
For months now we’ve warned that the Anti-Counterfeiting Trade Agreement (ACTA) was on its way to being approved. This agreement is intended to strengthen international patent and copyright protection and to fight piracy and counterfeiting–for example, by imposing on other countries American DMCA-style provisions that prohibit technology that can be used to “circumvent” DRM technologies. As science fiction author Corey Doctorow observed, ACTA is a “radical rewriting of the world’s Internet laws taking place in secret without public input.”1
As noted in my post Progress on ACTA, Public Knowledge president Gigi Sohn’s has some eye-opening remarks about ACTA in a Federalist Society panel discussion, Federalist Society’s Intellectual Property Practice Group National Lawyers Convention Panel Online, from 1:20:10-end. Sohn explains that normally the subject matter of ACTA would be negotiated in an open manner under the auspices of WIPO; but it was negotiated instead by the USTR as a trade agreement so that it could be done more quickly, and in secret.
In any case, the US and several countries signed the agreement earlier this month.2 Also President Obama signed the agreement on behalf of the US, there are no plans to submit it to Congress for congressional approval.3 The Obama administration has long argued that the President has the authority to “implement” ACTA by “Executive Agreement” alone, and that Congress’s ratification is not needed, because ACTA is already fully consistent with current US law and would not require Congress to enact implementing legislation.
As others have pointed out, however, there are several problems with this argument. First,
Second, if ACTA gets the minimal six ratifications it needs, then it is a treaty that could bind the US under international law to have its municipal law (e.g. intellectual property and foreign trade) comply with ACTA’s terms. “This triggers the possibility of trade sanctions for non-compliance with ACTA, even though Congress never entered into the agreement.”
Further, it appears that ACTA is not completely consistent with US law anyway.4
We are seeing the danger here of the use by the President of “executive agreements” as a substitute for treaties, but in a way that binds the US under international law and that might even effectively amend the Constitution via the Supremacy Clause, which reads:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
The treaty clause to the Constitution ostensibly requires the approval of a two thirds vote in the Senate, but executive agreements have been used as a way around this–to enter into commitments binding under international law–treaties–without getting Congressional approval. And because treaties are “the supreme law of the land,” the fear is that the President could in effect amend the Constitution by simply signing an executive agreement with terms contrary to other parts of the Constitution. This is one reason the Bricker Amendment was debated and almost passed in the 1950s.5 Too bad it failed.
It’s widely recognized that the American patent system is “broken” and needs to be “fixed.”1 And so various alleged “patent reform” measures have been bandied about for years now.
[Update: now at Kinsella on Liberty podcast episode 164]
1. Patent Law versus Private Property and the Free Market
Despite the received wisdom that patent rights are a type of property right, they are in fact simply state-granted monopoly privileges that allow patentees to use state force to squelch competition. See, e.g.:
The Patent Pledge No first use of software patents against companies with less than 25 people.
It may be possible to fix a subset of the patent problem without waiting for the government. If companies voluntarily renounce certain uses of patents, we can make patent law a moot point in such cases. [Learn More.]
These companies have agreed to be the first to publicly renounce aggressive use of software patents on small companies. Please join them!
The Mises Wiki is a fantastic resource. Check out, for example, it’s nice overview of Austrian and libertarian views on the intellectual property issue (Intellectual Property) and this extremely useful article: Without Intellectual Property, which discusses “How would the world look like without Intellectual Property? What are the current success stories and possible alternatives if some or all forms of IP were repealed (or became unenforceable)?”
Mainstream opinion seems to be changing on IP. In the post linked below Glyn Moody at ComputerWorld calls Microsoft on its mainstream assumption that IP in general benefits innovation.
Microsoft’s Subtle Knife Through the Heart of EU Software Industry
One of the striking changes at Microsoft over the last twenty years is how savvy it has become in terms of lobbying and influencing political opinion. There was a time when, like most serious tech companies, it regarded this kind of sneaky activity as beneath it – something that only tobacco companies would stoop to. No more; today, it bombards everyone and anyone with a constant stream of carefully-crafted policy papers and posts designed to achieve its goals.
Here’s the latest one. It comes form the “Positions” page of Microsoft’s Digital Policy site in Europe. It’s called simply “Intellectual Property”, and is written in a deceptively simple style, as if it were some non-contentious statement of truths universally acknowledged.
For example, it begins by stating baldly:
IP benefits innovation, companies and society.
Well, no actually. As the lawyer Stephan Kinsella puts it in a post that links to dozens of academic papers supporting his view:
it is striking that there seems to be no empirical studies or analyses providing conclusive evidence that an IP system is indeed worth the cost. Every study I have ever seen is either neutral or ambivalent, or ends up condemning part or all of IP systems.
In particular, studies have shown how intellectual monopolies actually hold back innovation, because they remove the incentive to invent once patents have been obtained that can be used to sue competitors into submission. James Watt is the classic example of the stultifying effects of intellectual monopolies on a field’s subsequent development.
Moreover, the book “Patent Failure” shows that for industries like software, patents don’t even benefit companies that own them: on balance they actually lose billions of dollars every year as a result.
Society certainly doesn’t benefit from the added costs that this inefficient system adds. That can be seen from the Microsoft tax that HTC has to pay on its Android phones – a cost that will inevitably be passed on to the customer, but for no additional benefit.
The next section of the Microsoft post is actually the key one, since it contains these apparently unremarkable sentences:
IF PATENTS are a measure of inventiveness, Americans have a long pedigree of inventing better mousetraps. With around 350 international patents granted per million population, they rank alongside the savvy Swedes—though neither can hold a candle to the ingenious Japanese or Swiss (with 1,200 and 500 patents per million respectively). Congress hopes to boost America’s ranking in the innovation stakes by overhauling the country’s patent system—and thereby create millions of new jobs in the process. The America Invents Act, the most sweeping reform of the United States Patent and Trademark Office (USPTO) in over 200 years, was signed into law by President Barack Obama on September 16th.
The sole reason countries have for granting patents is to promote innovation—in short, to create local jobs and national prosperity. Patents seek to do this by requiring the inventor to make prompt and full disclosure of the money-making idea in question, so others can see and benefit from it—either by devising a legitmate way around the patent or by buying a licence to use it. In exchange, the inventor is granted the monopoly right to exploit the idea for 20 years or so.
The deal has worked well for centuries, creating wealth, jobs and economic growth in the process. Patents have fostered conditions for drug-makers to produce medicines that have improved people’s lot no end. Likewise, patents have allowed chip-makers to deliver a torrent of goods that amplify the public’s ability to work, learn and play in unprecedented ways.
These supine, craven idiots, pretenders to economic wisdom, spout these consequentialist conclusions without a shred of proof. There is no reason to think that the patent system has ever “worked well” or “created jobs and wealth” etc. See Yet Another Study Finds Patents Do Not Encourage Innovation.
The Center for the Study of Innovative Freedom (C4SIF) is dedicated to building public awareness of the manner in which so-called “intellectual property” (IP) laws and policies impede innovation, creativity, communication, learning, knowledge, emulation, and information sharing. We are for property rights, free markets, competition, commerce, cooperation, and the voluntary sharing of knowledge, and oppose IP laws, which systematically impede or hamper innovation. IP law should be completely and immediately abolished.
We provide news commentary and analysis and scholarly resources from our unique pro-property, pro-market, pro-innovation perspective.
President Barack Obama and President Lee Myung-bak of the Republic of Korea at the White House this week.
The Pirate Bay suggests that we “Occupy Hollywood,” linking the picture shown at right to the Wired piece U.S. Copyright Czar Cozied Up to Content Industry, E-Mails Show.
[See Mises Daily version]
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