Ian Murray wrote:
>
> DH>>
>
> 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.
>
> *******************************
>
> [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]
--
Michael Perelman Economics Department California State University Chico, CA 95929
Tel. 530-898-5321 E-Mail michael at ecst.csuchico.edu