OPINION: LAWRENCE LESSIG Government Property continued

RELATED CONTENT • Companies (1) • Articles (9) • Column Archives (3) • Topics (1) Printer-friendly version Email to a friend Write the author: • Lawrence Lessig But in fact, the framers said nothing about "intellectual property." As I've argued in this column before, the term did not even exist until the late 19th century. The framers spoke of patents and copyrights for what they are - government-backed monopolies. The same Constitution that requires that no "private property be taken for public use, without just compensation" also requires that any patent granted to "inventors" be for "limited times" - that is, after a limited time it must be taken by the government and given to the public without compensation. Intellectual property is, and has always been understood to be, different from ordinary property. The framers distinguished these forms of "property" not because they were latent communists. They distinguished between real and intellectual property because they understood that the physics of real property were different. If you take my horse, I can't ride it. But if you take my idea, I am still free to use it, just as, as Thomas Jefferson himself said, "he who lites [sic] his taper at mine, receives light without darkening me." This difference means the regulations necessary to protect intellectual property are different from those needed to protect ordinary property. No doubt some regulation is necessary - a limited monopoly in some contexts to create an incentive to produce the ideas - but not the regulation we ordinarily associate with "property." "Inventions," Jefferson noted, "cannot, in nature, be a subject of property." Monopoly, we might add, should therefore be created only when we can see it will do some good. Talk about "property" simply confuses the current debate. If you are a supporter of patents - as I am in many fields - then you should be willing to defend them for what they are - government-backed monopolies. And while these monopolies often do good, whether they should be extended to a new field of innovation depends upon whether we have reason to believe they will have some benefit. Patents in principle do some good. In the case of the pharmaceutical industry, they provide incentives to overcome the high cost of invention. But, like all regulation, patents also impose costs. Economist Eric Maskin and technologist James Bessen have argued convincingly, for example, that patents have reduced research and development in the software industry (because software development is sequential and complementary). So the question policy makers should be asking comes to this: Do we have any good reason to believe that in the context of the Internet, software and business-method patents will create more benefits than costs? Republicans should be eager to ask this question. They have famously, and rightly, forced the federal bureaucracy in many contexts to produce regulatory impact statements - statements that help policy makers decide whether the regulation in question will do more good than harm. So why not here? Why not demand of the U.S. Patent and Trademark Office that it demonstrate that the benefits produced by software and business-method patents outweigh the harm? Congress hasn't made this demand. Neither has President Clinton. Nor have candidates Gore or Bush. Rather, in classic Washington style, the government regulates first and asks questions later. So, too, with the Patent Office: Overworked and underfunded, regulators don't have time to determine whether this explosion in software and business-method patents will do any good. To be fair, Gore has opposed patent-term extension (though he has been silent on copyright-term extension), and Bush says he favors innovation over litigation - but neither indicates on their Web pages any specific policy about patents in the context of the Internet. (Note to Gorton: Check out the search functions on both sites.) One would think it not too much to ask that Washington have good reason before it hands out monopolies. One would also think, in the face of growing skepticism about these monopolies, that more politicians would demand such a reason before allowing this regulation to continue. And one would think, given what's at stake, that this issue would merit at least some attention from the presidential candidates. One would think, that is, if one took seriously the principle that Gorton promotes. But apparently, too few do. Lawrence Lessig is a professor at the Stanford Law School. <PREV | Page 1 | Page 2

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