Add Madison's Fears Of Intellectual Property To Jefferson's

from the be-very,-very-careful dept

A bunch of folks have been pointing me to a series of posts at the Volokh Conspiracy blog concerning intellectual property. The one that kicked it off may be the most interesting. For a while, we’ve pointed people to Thomas Jefferson’s views on “monopolies” and his overall reluctant feeling towards patents and copyrights. Many of Jefferson’s feelings on this topic were made clear in letters between himself and James Madison. However, Madison is often credited with convincing Jefferson that patents were necessary when Jefferson was against the idea entirely. The post on Volokh, though, shows that Madison was, like Jefferson, very aware of the dangers of such monopolies and warned that it should only be used in the rarest of cases:

But grants of this sort can be justified in very peculiar cases only, if at all; the danger being very great that the good resulting from the operation of the monopoly, will be overbalanced by the evil effect of the precedent; and it being not impossible that the monopoly itself, in its original operation, may produce more evil than good.

You might want to remember this any time someone insists that the founding fathers were huge supporters of stronger and stronger intellectual property laws.


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Comments on “Add Madison's Fears Of Intellectual Property To Jefferson's”

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24 Comments
Anonymous Coward says:

When compared with companies of today I think how the founding fathers handled this shows their true view of intellectual property. Being only a little sarcastic the fact that they didn’t patent or copyright these ideas could be taken as proof that they believed that these ideas of theirs should be shared with all.

Chris Bidmead says:

Re: Fears of IP

I believe it would be truer to say that the founding fathers had no view of intellectual property at all. The concept of ideas and inventions as “property” was entirely alien to both Jefferson and Madison. Madison merely proposes the application, in some limited circumstances, of some kind of temporary reward to encourage the sharing of ideas, whose natural domain is the commons.

It’s my understanding that “intellectual property” only begins to appear in the margins of legal thought in the mid-19C, and doesn’t harden into a clear (well…?) legal concept until the mid-20C

angry dude says:

read US Constitution

Mike, you are a clueless moron

Just read the US Constitution.

Call it whatever you want, but until the Constitution is amended inventors do have “exclusive rights” to their “discoveries” (exclusive = right to exlude others)

Petition the Congress to amend US Constitutuon or just shut up

Anonymous Coward says:

Re: Re: read US Constitution

1) I don’t see that clause. Where does it say that?

2) My memory of constitutional history is that what (some of) the Founders wanted to prohibit was “special interests” in the form of political parties, but that never made it in to the final document.

Anonymous Coward says:

Re: Re: Re:3 read US Constitution

@18: oops. Yes: looking at my question in the context of “unthreaded” explains why you gave me the Art. I, sec. 8 answer, which didn’t make any sense to me at first.

My “where does it say that” question was directed at #6, Unknowledgeable Geek’s claim that “[t]he constitution also prohibits special interest groups.”

Paul says:

Re: read US Constitution

Blind fool.

At what point did he call it unconstitutional?

At what point did petitioning congress become the only way to change a law?

FIRST, you’d want to make sure you educate the masses so that they follow you. THEN you petition Congress.

One man can’t make a difference. But one man can create an army and change the world.

So, get off the school computer and go back to class. Your teacher is probably wondering why you’ve been gone so long with the bathroom pass. I’m pretty sure there’s a time-limit on how long 6th graders can be gone. You don’t want detention, right?

Mike (profile) says:

Re: read US Constitution

Mike, you are a clueless moron

Always nice to hear from you angry dude.

Just read the US Constitution.

I have. You, on the other hand, seem to only be selectively reading it.

“Congress shall have 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.”

This is not a universal “ok” for patents. It very clearly says that *for the purpose of promoting progress of science and useful arts*. In other words, if it’s NOT promoting such progress, it’s a problem. And that’s true in this case.

The quotes from Madison and Jefferson — who were the ones who debated and eventually crafted how this language would be presented — clearly shows their intentions. It’s folks like yourselves who pretend they meant something different.

Looking at what they said leading up to the creation of the constitution shows their specific fears — and looking at what’s happening today shows that those fears have been realized.

Folks like you who want to pretend the founding fathers meant something different than they did want to ignore the real purpose of the patent system. Reading what they wrote is important — no matter how much you don’t want to believe it’s true.

Petition the Congress to amend US Constitutuon or just shut up

There’s no need to change the constitution. It’s quite clear that patents are only to serve the purpose of promoting progress and innovation. When it’s not doing so, those patents are unconstitutional.

Btw, I’ve noticed that you never responded to my request to hear about your patent. You also never explained the disparity between claiming you had a patent years ago, and then claiming that you just got your first patent. It would be great if you responded to that, as it would help clarify your position.

angry dude says:

“special interest groups” ?

Like what ?

Like the patentless clueless uncreative group of people who don’t like patents and copyrights just because they are unable themselves to contribute to the “progress of arts and useful sciences” ?
yeah, that’s a very large “special interest” group indeed…

TheDock22 says:

Re: Re:

I like reading the comments from Angry dude; I like the laugh at morons.

I agree with Chris though, the founding fathers could never comprehend what Intellectual Property rights would turn into in our day and age.

Would they agree with how the US has handled it? Probably not. And I am all for changing the constitution. I mean, that is how the founding fathers set it up years ago. The constitution needs to be amended as times change, not for us to have to bend over backward to conform to laws written hundreds of years ago.

Anonymous Coward says:

Re: angry dude

i think he’s talking about lobbying and what not.

being as knowledgeable as you are, i’m sure you would have noticed that the government does cater to special interest groups.

i mean, someone of your intellect couldn’t have missed it. so i can only assume you’re being sarcastic because only an ignorant fool would have missed that completely.

But… I’m getting this strange feeling you’re not being sarcastic… which leaves only one logical conclusion.

I’ll let you come to that one on your own. I have some faith you’ll arrive at the right answer.

Jay says:

One man can’t make a difference. But one man can create an army and change the world.

Wouldn’t that then mean one man can make a difference. since without that one man the army wouldnt have formed, and if the army were one man short maybe it would have lost, and so in either case, one man is the difference. Maybe it is you that needs to go back to class… contradictions abound… get some class before you lecture others on going to it…

PhysicsGuy says:

Re: Re:

are you really that bored or that dense that you chose to argue THAT? just to clarify, in case you really are that stupid to have missed the meaning of his words: one man acting alone cannot make a difference, but one man can create and army and change the world.

my god, there’s a fine line between poking fun and being a complete tool. you’ve strayed a little too far over that line.

Kezia says:

us contitution

THANK YOU MIKE!!!
at last another person who has read the constitution.
what i would like to know is where does everyone else has come up whith this strange notion that the english language has changed so much in the past 200 years that the words used in the constitution are no longer listed in any common dictionary and are therefore open to interpretation????

Steve R. (profile) says:

Benjamin Franklin's view

James Morris wrote “Ben helped create our intellectual property law. He said, “As we enjoy great Advantages from the Inventions of others, we should be glad of an Opportunity to serve others by any Invention of ours; and this we should do freely and generously.” His generation created patent and copyright laws that divided the benefit of new things between the creators and the community.” (emphasis added)

This further bolsters the concept that patents are for “for the purpose of promoting progress of science and useful arts.” Patents are not for the purposes of creating a toll both and authorizing monopolist rights.

angry dude says:

Re: Benjamin Franklin's view

Idiot,

Here is an actual quote from Ben Franklin for you to read:

“Jealousy and Envy deny the merit or the novelty of your invention; but Vanity, when the novelty and merit are established, claims it for its own… One would not therefore, of all faculties, or qualities of the mind, wish for a friend, or a child, that he should have that of invention. For his attempts to benefit mankind in that way, however well imagined, if they do not succeed, expose him, though very unjustly, to general ridicule and contempt; and if they do succeed, to envy, robbery, and abuse.”
-Ben Franklin, 1755

Or, in the modern formulation:
“When dealing with big companies there is no such thing as free lunch… unless you’re the lunch”

Welcome to capitalism, pal

TiredofLame says:

SCOTUS Spoke on this

Mike quote:

“There’s no need to change the constitution. It’s quite clear that patents are only to serve the purpose of promoting progress and innovation. When it’s not doing so, those patents are unconstitutional.”

You are probably right on the first sentence above. The Supremes covered part of this when ruling on the Bono Copyright extentions awhile back (sorry- I don’t have the exact dates or details). Basically they ruled for copyrights that the Constitution passed the baton to Congress in terms of length and rules and regulations. So probably, Congress is in charge of this per the courts.

In terms of your additional assertion that if a specific patent or group of patents is not doing its duty then those are “unconstitutional” it seems unlikely that you can pick and choose that way after the granting. It is possible you did not mean that sentence the way I read it.

And since many here love to call me an idiot (whatever my argument), I will do the honors myself- “I am an idiot.” There, got that out of the way!

Mark Goodell says:

Patents and Founding Fathers

Slavery is provided for in the U.S. Constitution. Do we still have slavery? Was it the founders’ intention that America would always have slavery?

Interestingly, “intellectual property” is a euphemism for what amounts to the buying and selling of human freedom. By means of it, the public has lost its freedom to be self employed. Instead of, “Here’s a better way; let me show you!,” it’s, “You can’t do that, because I thought of it first, and under the law this is my chance to become rich. Think you’ll need to go get a job now that I’m certain to get most of your customers, then you can work for me, but you’ll have to sign right here that any good ideas that you have will also belong to me.” There it is. Intellectual Property. Euphemism for modern forced servitude.

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