I’m an attorney interested in Intellectual Property (IP) issues, but not an IP attorney. See my blogroll for a partial list of bloggers who know IP law better than I do.

My interest is not in the law, precisely, but in the intersection of law and life from a philosophical and utilitarian standpoint. My two big ideas are: (1) the current law and lawmaking trend for Intellectual Property in the United States is not in compliance with the Constitution and (2) most companies will be best served most of the time by not fully litigating their rights.

1. IP rights protection and the law as it should be.

Article I, Sec. 8 grants congress 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[.]” As the preamble clearly suggests, rights protection in the U.S. is intended to create a profit motive to encourage the creation of more IP. European IP differs fundamentally in that it is more like a traditional property right—it is perpetual, transferable, etc. American IP was meant to be different.

This limitation is important because while IP protects inventions and writings, it does so by removing things from the public domain and handing it over to private entities. So there is a balancing act–the public is made richer by new creations, but at the price of making them poorer by removing some of the “raw materials,” in effect by fencing off parts of the commons.

To take the commons metaphor a step further, the 5th Amendment requires just compensation for the taking of private property for public use (IP is the opposite, the taking of public property for private use, but the principle is the same—government violates its mandate when it gives away valuable property). The “compensation” is the promotion of progress. Protection that goes beyond what is necessary to promote progress goes beyond the constitutional mandate.

Reasonable people can disagree on where exactly that line is. Life? Absolutely. Life plus a few years so you can leave something to your kids? Probably. Life plus centuries? Absolutely not.

Unfortunately, in the modern era of a “global marketplace,” IP rights protection in the U.S. has gotten away from the constitutional model of “limited Times” to become more like the European model of perpetual protection. I have been very critical of both congress and the Supreme Court for ignoring this limiting language (See Eldred v. Ashcroft, where the Supreme Court nearly defined “limited times” right out of the constitution, seemly approving any duration language shorter than “forever”).

Presumably there is some period of time (when California crashes into Asia? when the sun explodes?) that the Supreme Court will object to, but it’s not clear if there is a human time frame too far for them.

The commons is being fenced off not for the benefit of the public but for the benefit of private entities—in violation of the text of the constitution.

2. IP rights enforcement.The law as it should play out in the marketplace.

I’m generally of the opinion that experts should be limited to advisory roles. They should participate in the decision making process, but they should not make decisions. As a practical matter, to become experts, they have to give outsized importance to a particular area to the, at least partial, exclusion of all others.

An intellectual property attorney is expert in the protection of intellectual property rights and when those rights are violated, the usual tools are threats of litigation (whether softball or hard) and litigation. But the rights holders don’t want the violation to stop, per se. What they want is the best result for themselves. This will probably include an end to the violation and some compensation from the violator, but their interests do not stop there.

There are various cost considerations, not all monetary. How about PR and marketing? Today, when anyone with an internet connection has a megaphone as potentially big as that held buy the largest corporation, rights holders are ill served by enforcement tactics that ignore how those tactics will look to an otherwise disinterested audience.

The law provides quite draconian penalties for rights violations while most of the actual violations are inadvertent or careless. If someone reading a blog entry or news story sees themselves in the violator—either they have done or could have done what this person did—then vigorous prosecution will harm the rights holder’s public image. This is something attorneys all too often ignore, but increasingly ignore at their client’s peril.

And that’s why enforcement should not be left to the legal department alone. The smart lawyer works together with public relations and marketing to determine the best reaction.


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