Patent, Antitrust, the New York Times, and the Supreme Court

Recently (June 17th), the New York Times said this in an article on a recent Supreme Court case: “The case pitted a company’s constitutional right to protect its intellectual property — through reliance on a patent that excludes competitors — against antitrust law, which holds that a company cannot unfairly exclude others from legitimately entering a business with a rival product.” This has been bothering me because the basis for U.S. patent and copyright law in the U.S. Constitution says this: “[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 latter is a far cry from being a “constitutional right to protect its intellectual property.” In fact, the U.S. copyright laws specifically reject the concept of any natural right or moral right in a work (whereas France for example does have such a doctrine). Instead, as the Constitution says, we allow the protection of copyrights and patents only to promote progress and, even then, only for a limited time. This is because any such exclusive right is viewed as being against the greater good of the society as represented by the First Amendment, free trade, a competitive marketplace, etc. It is quite simply NOT A RIGHT. It is a privilege extended by the government in order to entice people to invent. By contrast, antitrust law is (theoretically) all about enabling competition, free trade, etc. It is forever, not a limited time and is always viewed as being in the public good. This is not a new tension in the law – antitrust and patent have always been at odds. Aside from the “limited time” of the exclusivity, antitrust should win.

Change

This post was triggered, like so many of my others, by an NPR story. In this case the story was how young people have become so much more mistrustful of politicians and government. It triggered several thoughts. One reason given by a student was that they had voted for Obama and then nothing changed. They seem surprised by this. First, maybe their high school civics class failed them if they think that changing the President will change the government. Or maybe they did not allow for the fact that ours is a society with multiple views and that any "change" must necessarily accommodate those views, at least if they want to keep a democracy. And when did "change" get defined to mean good. It's idiotic to believe that all change, any change must be good, yet that seems to be the simplistic view of youth if NPR is correct. I suspect youth is a bit more nuanced than NPR gave them credit for. Still, if you think about it, "change" has become the sort of meaningless god-term for the left that "family values" has for the right. The respective sides just know it's the end-all be-all of goodness, but may well discover that they don't all have the same idea of what that term encompasses. Also, many things have been "changed" in ways to leave the left wringing its hands - several Supreme Court decisions come to mind. Finally, it seems odd to me that all these change-seekers who have become so distrustful of government and politics, seek a change wherein the government is used as the implement of the policy de jour. This seems... irreconcilable. Perhaps what we need is a better class of politician or the removal of term limits or maybe we need to stop deciding that the solution to extreme partisan politics is to elect even more extreme politicians to drown out the voices on the other side. Those, however, are topics for other posts.