Here come the Patent Trolls

Posted in: Research, A Summary View, Thomas Jefferson

Hot off the press (almost) from another of our former ICJS fellows, Jeff Matsuura, is Jefferson vs. the Patent Trolls: A Populist Vision of Intellectual Property Rights (produced in an aesthetically pleasing setting and travel-friendly size by the University of Virginia Press in late 2008).  Even if you have no interest in this topic, I'd highly recommend scoring yourself a copy of this book, just because it looks so irresistibly fetching.  I'm currently trying to quit admiring it long enough to put it on our new books shelf.  Ahem, but the subject matter is very important, too - another hot topic these days that Jefferson, of course, thought of already 200 years ago.

Also along these lines, our IT director brought the following to our attention: The Public Domain: Enclosing the Commons of the Mind, by James Boyle (Yale, 2008).  Chapter 2, entitled "Thomas Jefferson Writes a Letter," discusses Jefferson's writing on the subject of intellectual property and its relevance today.  And, appropriately enough, you can read Boyle's entire book online, and even add your own comments, as if it were a giant blog entry.  Now that's open-minded!

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TJ's Letter to Isaac Mcpherson, August 13, 1813 (Jefferson (ME), VOl XII, pp 326-328), is one of my favorite Jefferson correspondences.In just two paragraphs, just shy of 1100 words, Jefferson succinctly laid out a description of Natural Property Rights from which implications flow incredibly deep.

Professor Boyle's focus in on intellectual property rights, yet he touches upon the underlying Natural Right for all property possession, and this reaches much farther than intellectual property rights.

Jefferson’s point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy.

"Occupancy", as a legal concept is easily misunderstood, and can be difficult to comprehend within the whole spectrum of property. In the Mcpherson letter Jefferson explained it with:

By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society.

Occupancy is not limited to residing, but instead means utilisation. Natural Property Rights extend out only so far as they are being directly ustilised by a person in their day to day life. All other property ownership is a grant of the state. These state grants of property rights include many that are taken for grante; aside from intellectual property, two other notable types are inheritances, and absentee ownership (i.e. leaser).

This exposes a fundamental contradiction that underlies the Austrian Economist variant of libertarianism: 1) that all property should be privately held; 2) a weak and anemic state power. Just how do they propose individuals retain their ownership of property which extends out beyond those individuals' direct sphere of control without the use of illegitimate force against others better situated to take ownership of it? Only a robust state can guarantee this. The Austrian Economists do not in reality believe in natural liberty, they instead dream of a neo-feudalistic society, in which they are idle lords, possessing more property than they utilise directly, and living off skimming the cream from the work product of others' who create value utilising it. Liberty is more than bellying-up to an all you can chisel, smorgasbord of avarice and greed.

The powerful barons seemed to constitute an intermediate body charged with the defence of liberty; but properly speaking, it was only their own privileges which they maintained against the royal power on the one hand and the citizens on the other hand. The barons of England extorted Magna Charta from the King; but the citizens gained nothing by it, on the contrary they remained in their former condition. Polish Liberty too, meant nothing more than the freedom of the barons in contraposition to the King, the nation being reduced to a state of absolute serfdom. When liberty is mentioned, we must always be careful to observe whether it is not really the assertion of private interests which is thereby designated. For although the nobility were deprived of their sovereign power, the people were still oppressed in consequence of their absolute dependence, their serfdom, and subjection to aristocratic jurisdiction; and they were partly declared utterly incapable of possessing property, partly subjected to a condition of bond-service which did not permit of their freely selling the products of their industry.

Georg Wilhelm Friedrich Hegel, "The Philosophy of History", pt. 4, sect. 3, ch. 2

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