Really? That's not my experience. What lefties have Heritage & the Federalist Society invited to their confabs? It's also not my experience that rightwingers are so practiced at debate. From having dropped in on their book parties and having them on the radio now & then, I find that they're quite unused to being challenged.
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[When a leftie goes into the lion's den http://james-boyle.com/ ]
James Boyle © James Boyle 2000 Text of a Speech to the National Federalist Society Annual Meeting in Washington DC Published in Engage Volume 1, April 2000 p.83
PROFESSOR BOYLE: I am going to talk today about what a good Federalist should think about the recent expansions in intellectual property both on and off the Internet. This will be a somewhat "subjunctive" talk. I am not a member of the Federalist Society and my views are in many respects markedly different from those who are Federalists. If we transposed political positions onto the map of the United States, the Federalist Society would be in Maine and I would be somewhere to the west of Honolulu, so you should be skeptical of the arguments I put forward. Nevertheless, I hope to convince you that intellectual property expansions over the past 10 years, and particularly intellectual property expansions that center on the Internet, are threatening a series of commitments that Federalists hold dear and for which they have been particularly effective advocates.
Before I do this, I want to say something just to clarify any possible misunderstanding. I have a very boring set of views about intellectual property. I believe that intellectual property is a fine thing; unlike many academics, I actually have cashed royalty checks and enjoyed doing so. I even hope I will do so in the future. I want drugs to be developed which require enormous investments, and enjoy the products of a variety of media industries which I think need some intellectual property protection. The tragic thing is that my view -- which is basically that we should only give intellectual property protection when it is clearly necessary in order to encourage future innovation -- has been transformed from the boringly centrist view it should be, into an extreme, marginalized view, attributed to a bunch of "info-commies" and haters of private property. I object to this, because I want to earn my extremism rather than having it thrust upon me. Still, to quote someone who Federalists might revere, "extremism in the pursuit of liberty is no vice," so let me turn to my story.
Over the last 10 years there has been an increase in intellectual property protection both on and off the Internet. Intellectual property rights have gotten longer, deeper, and wider. Longer in the sense they cover things for more time, deeper in the sense that they cover elements of use that were never previously thought to be covered, and wider in the sense that they cover areas which particular intellectual property regimes -- copyright, patent, trademark, and so forth -- were never thought to cover. There are some obvious examples -- the Sonny Bono Term Extension Act, which increased the copyright term from life plus 50 to life plus 70, the Compilations of Data Anti-Piracy Bill which currently is going through Congress, and certain provisions of the Digital Millennium Copyright Act, particularly its anti-circumvention provisions.
Those are merely the most obvious examples - attempts to extend copyright dramatically, or to create entirely new intellectual property regimes of dubious constitutional validity -- but there are also other less obvious areas in which intellectual property has expanded.
Patent law has dramatically expanded both on the Internet and off. The Patent and Trademark Office has taken an attitude towards registration which one might best describe as supine; it would be hard, even for me, to overstate its willingness to give patent protection to "inventions" which seem blindingly obvious, not terribly novel and of dubious utility as well. Priceline.com's sort of business method patents are a wonderful example. Here we have an absolutely fascinating claim; basically patenting the idea of an auction with a reserve price.
There are other expansions in patent law which have received less attention than the business method patents, but which ultimately may become more important. For a long time it was thought that you couldn't patent algorithms, formulae or ideas. Increasingly, for a variety of reasons -- some of them legal, some of these technical -- those restrictions are being eaten away and, deprived of its restraining conceptual walls, patent rights have begun to expand enormously. On of the most important developments in terms of the Internet is the fact that the Patent and Trademark Office and the courts -- seem to believe that any program running on a computer - whether it's a program that makes a business method work, or a program that follows through the steps of an algorithm, -- becomes a patentable machine. But since almost any algorithm, business method or what have you, can be given a software incarnation, where are the limitations on patentability? The shade of Alan Turing is invoked to break down the conceptual walls around patent in a way that will be increasingly important on the Internet.
[snip]