Marcelo Baez

"Too much of a good thing," Mae West

supposedly said, "can be wonderful." Is that true? Maybe in some cases, but probably not where patents and copyrights are concerned.

Just look at the controversy over a recent ruling that made unlocking your cellphone a felony punishable by five years in prison and $500,000 in fines. This twist on 1998's Digital Millennium Copyright Act (DMCA) has encouraged people to rethink what, exactly, intellectual property laws should protect, and to wonder if they've gone too far. I think the answer is yes, and that a look back at the constitutional roots of our patent and copyright system can offer some useful guidelines.

Software is becoming the most valuable part of many physical goods. For a Blu-ray disc, that's obvious: The intellectual property—the movie—matters more than the physical medium. But these days, even cars and airplanes depend as much on their software as on their steel. With that in mind, companies have pushed for ever-greater protections. Because the DMCA makes it illegal to circumvent software encryption, some DIY car repairs could potentially be judged illegal—the software may be encrypted!

Intellectual property law is supposed to promote experimentation, not hold it back. A similar problem in 17th-century England led to the precursor of our own system of patents and copyrights. In those days British monarchs often granted monopolies to courtiers in exchange for money or political support. The holder had the exclusive right to sell a product, anything from playing cards to French perfume. These unpopular arrangements were political payoffs, not rewards for introducing new products. And the abuses got so bad that in 1624 Parliament passed a law banning monopolies except as a reward for inventors.

Fast-forward to the drafting of the United States Constitution and you find similar thinking. Thomas Jefferson opposed all government-granted monopolies, but James Madison argued that while monopolies generally are bad, there is a place for patents and copyrights. In the end, the Patent and Copyright Clause (Article I, Section 8) empowered Congress "[t]o 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."

The idea was that innovators would be rewarded with a short-term monopoly on their work. Afterward it would enter the public domain, hopefully sparking further creations or discoveries. In the early days the Constitution's "limited times" were quite limited: 14 years for patents; 14 years, plus a potential 14-year renewal term, for copyrights. And patents were strictly scrutinized to ensure that they represented real inventions. (Jefferson himself, when he was secretary of state, served as a patent examiner, so important did he consider this task.)

Nowadays the limited times aren't so limited. Copyright has been extended to the life of the author plus 70 years; corporate works (with no living person as "author") get a 120-year term. Patents are good for just 20 years, but there's far less scrutiny to ensure that they represent something truly new—a lot of "nuisance patents" are filed to provide bargaining chips rather than to protect actual creativity. Also, influential companies often get Congress to extend their own patent rights through special legislation. Does a century-plus exclusive right encourage invention more than a 28-year exclusive right? It's doubtful.

The DMCA's rules make things worse by interfering with the repair or repurposing of electronic goods after they have been sold. Some companies are even trying to apply that kind of thinking to nondigital products. The Supreme Court just took a small, positive step in the case of Kirtsaeng v. John Wiley, where it protected the right to resell books bought overseas. The publisher had argued, essentially, that you might own a book you bought, but the company retained the right to sell it.

Ownership ought to mean something. When you buy a smartphone or an automobile, it should be yours, and companies shouldn't be able to leverage their intellectual property rights in software to keep you from unlocking, repairing, modifying, or reselling it as you see fit. Intellectual property is a good thing, all right. But it turns out that too much of it isn't wonderful at all.

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