Why Do We Let Those Who Benefit Most From Monopolies Write The Laws That Grant Them?

from the it's-a-problem dept

Tue, Apr 19th 2011 10:34am — Mike Masnick

Rick Falkvinge's latest piece at TorrentFreak covers an important issue: the fact that all too often those who write our patent and copyright laws are lawyers practicing in the space. That is, they're the people who benefit the most from perpetuating the system and expanding it further. That's not to say that all copyright and patent lawyers always think expanding the laws are better, but it is pretty common -- and when you get to the folks crafting the laws, it's very common. The article highlights an all too common occurrence, in which a patent or copyright holder threatens or sues someone, and the person or company sued pays up because it's cheaper to pay than to go to court:

And so, another �license� is paid up, and copyright lawyers use it as proof to politicians that licenses are paid and the system works. It�s circular reasoning at its most insidious.

The danger here lies in the difference of perspective: lawyers and politicians regard court proceedings as having zero cost, as basically being a correspondence or a negotiation. In the reality entrepreneurs live in, however, the court cost of a monopoly lawsuit can easily hit a million euros.

Of course, it can be even worse than having them just write the laws. There's the infamous case of Giles Rich, the patent lawyer who wrote a large part of the 1952 Patent Act... and then went on to become a judge at CAFC where he ruled on the interpretations of the law he, himself, had written. People note that he's had more influence than anyone on patent law in the US in the modern era... and almost all of it was in one direction only. And this kind of thing happens all the time... because politicians think that the people to ask for how to write patent and copyright laws are the lawyers rather than the businesses and citizens who will be most impacted by these laws:

So the next time the monopoly laws need revision and redrafting, the politicians go to the monopoly lawyers with demonstrated understanding of the substance matter. Politicians note that the lawyers have been correct in their predictions that license money would start to flow, and take it as proof the system works; they can�t see or know money is flowing for all the wrong reasons.

And so, the monopoly lawyers get to expand and revise those laws yet again, when it was nothing but a legalized extortion racket from the start. The cycle continues.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, laws, lawyers, monopolies, patent

18 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

jupiterkansas (profile), 19 Apr 2011 @ 10:56am

Reform copyright now!
So the artist that created the copyrighted work dies, and the copyright passes onto their heirs, but then the heirs die, and since copyright terms are so prolonged, the copyrighted work ends up in the hands of an estate lawyer, or in the hands of a mega-corporation which is basically a collection of lawyers.

Copyright law has been specifically designed by lawyers so that in the end, it's only the lawyers that benefit. Nearly the entire cultural output of the 20th Century will end up in the hands of lawyers.

And people who are not lawyers defend this system?
[ link to this | view in thread ]
Atkray (profile), 19 Apr 2011 @ 10:59am

Lawyers who are not people support this system.

FTFY
[ link to this | view in thread ]
E. Zachary Knight (profile), 19 Apr 2011 @ 11:00am

Same for all laws that grant a monopoly
This doesn't just apply to patents and copyrights. There are states that have laws requiring interior designers to get a government issue license for which they have to got to school for a couple of years and then become an apprentice to a licensed designer for even more years before they can start their own business. Who wanted these laws? It wasn't the people who hire interior designers. It was the then working interior designers? Why did they want these laws? To restrict competition.

Funeral Homes are another example. In Oklahoma and Louisiana as well as other states, it is illegal to sell caskets unless you are a fully licensed and operating funeral home. There is currently a lawsuit in Louisiana brought by a monastery who made and sold cheap plain caskets to help pay for their monastery. Who wanted these laws? Not patrons of funeral homes. It was operators of Funeral Homes.

Same thing for florists in Texas. It is illegal to pick and arrange flowers without a license from the state that is approved by licensed florists.

Do I need to go on?
[ link to this | view in thread ]
Jesse Jenkins, 19 Apr 2011 @ 11:02am

Why is this any different than any other law?
Not intending to be too cynical, but in case you've been asleep,most of our laws have strong influence from outside forces.Our congress doesn't actually have time to DO their job. They're too busy campaigning to stay IN their jobs. All those kind, generous outside forces are willing to step up to the plate and do all that awful "beaurocratic" work, like running America. And on top of that, they're willing to make huge campaign contributions to lessen the burden of the incumbent congressmen. Now, I'm not suggesting this is a classic "host-parasite" relationship. In this situation, it's a dual parasite symbiosis where the American public is the host . . . if you get my drift. . .
[ link to this | view in thread ]
Crosbie Fitch (profile), 19 Apr 2011 @ 11:10am

Repeal copyright now!
Actually, the people are busily wresting back their liberty to share and build upon their own culture.

The corporations and their lawyers who'd rather this liberty remained suspended by copyright and patent term such people pirates. But then, when to be human is to be at liberty to sing each other's songs, tell each other's stories, copy each other's tools & remedies, and to improve upon them, then to be human is to be a pirate.

The rot can be rooted out if you dig deep enough - see The 18th Century Overture - A Crescendo of Copyright - Natural Finale and Reprise.

Folklore occurred without monopoly, its survival depended upon oral tradition, being copied and improved down the generations. File-sharing irrespective of copyright and utilising technology irrespective of patent resumes that primordial tradition.
[ link to this | view in thread ]
Jay (profile), 19 Apr 2011 @ 11:19am

Re: Why is this any different than any other law?
So it seems the better to have congressmen and senators in office for one longer semester and term limits so as not to become too influential.
[ link to this | view in thread ]
Chosen Reject (profile), 19 Apr 2011 @ 11:27am

Re: Re: Why is this any different than any other law?
Or how about immediate loss of office for any campaigning done more than one week before election? Of course, then we'd have to define "campaigning".
[ link to this | view in thread ]
6 (profile), 19 Apr 2011 @ 11:49am

"There's the infamous case of Giles Rich, the patent lawyer who wrote a large part of the 1952 Patent Act... and then went on to become a judge at CAFC where he ruled on the interpretations of the law he, himself, had written. "

There are those that would say "that rit thare's how it's done son"
[ link to this | view in thread ]
ChurchHatesTucker (profile), 19 Apr 2011 @ 11:55am

Re: Same for all laws that grant a monopoly
No need. "Regulatory Capture" will suffice.
[ link to this | view in thread ]
MrWilson, 19 Apr 2011 @ 12:00pm

Re: Same for all laws that grant a monopoly
"Do I need to go on?"

Actually, you should stop. I'm currently lobbying Congress to pass a law that restricts exposing corruption to those who are licensed to do so. I also run a school trains and licenses these people - the only one in the country. I can send you a brochure if you want to enroll. I'm going to get the government to allow student loans to be used.

Naturally, you can't expose the corruption that led to the passage of my bill because you aren't licensed to do so!
[ link to this | view in thread ]
Anonymous Coward, 19 Apr 2011 @ 1:16pm

Re: Same for all laws that grant a monopoly
Intuit and their lobbying to keep their software relevant

http://www.techdirt.com/articles/20100124/1836527884.shtml?threaded=true&sp=1#commen ts

http://www.techdirt.com/articles/20100723/09055310339.shtml

http://yro.slashdot.org/story/1 0/08/02/1856215/Intuit-Still-Fighting-Government-Tax-Software

http://en.wikipedia.org/wiki/Intuit (under criticisms and controversies).

http://www.techdirt.com/articles/20110117/01061012694/lets-try-this-again-even-if -theres-no-corruption-appearance-corruption-hurts-representative-government.shtml#c258

The Hotel industry

http://www.techdirt.com/articles/20100628/0037599977.shtml

The taxi cab industry

http://www.techdirt.com/articles/20101024/21393211556/company-making-cab-limo-rides-more -efficient-ordered-to-stop.shtml

and the list goes on. Pretty much every industry in this country benefits from undue govt imposed competitive restrictions.
[ link to this | view in thread ]
The Original Anonymous Coward (profile), 19 Apr 2011 @ 2:59pm

And the cycle repeats itself...
Check out the second half of Part I of Atlas Shrugged. (The book, not the movie.)

This phenomenon was just part of a novel back in the 50's. Since then it's become reality. Very interesting.

(waiting for political flame war to start...)
[ link to this | view in thread ]
Jesse (profile), 19 Apr 2011 @ 4:38pm

It's like cutting the cake and picking your piece first.
[ link to this | view in thread ]
Suzanne Lainson (profile), 19 Apr 2011 @ 7:30pm

Re: Why is this any different than any other law?
This is pretty much it. The people/companies who put up the money get the laws they want.

How about we (average voters) organize to change campaign finance laws and lobbying laws to level the playing field a bit?
[ link to this | view in thread ]
The eejit (profile), 20 Apr 2011 @ 12:17am

Re: Re: Why is this any different than any other law?
How about we criminalise lobbying instead, with a life sentence for anyone caught doing it in the Houses of Congress?
[ link to this | view in thread ]
Suzanne Lainson (profile), 20 Apr 2011 @ 12:38am

Re: Re: Re: Why is this any different than any other law?
How about we criminalise lobbying instead, with a life sentence for anyone caught doing it in the Houses of Congress?

Sounds good to me.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 20 Apr 2011 @ 8:25am

Re: Re: Same for all laws that grant a monopoly
Regulatory capture is true for those industries, yes. The industries end up controlling their own regulation.

But it is clear to me that copyright and patent law is taken farther than simple regulatory capture. For lack of a better term, hyper regulatory capture.

The lawyers started by arguing the patent and copyright cases in the courts. Then advising the politicians who write laws and advising their clients/employers on the law. Then it went beyond just advising - they outright write the laws now. They run the companies and trade groups. They have their own patent court circuit with judges that used to be the patent lawyers. Copyright is heading on that same path - attempts to set up separate expedited judicial systems in regards to 3-strikes internet access cut-offs. Former copyright lawyers and lobbyists are ending up as judges.

This. Is. Crazy. We have IP laws written by IP lawyers, IP lawyers arguing cases in their own IP courts ruled over by former IP lawyers turned judges, and IP lawyers running those business involved in those cases.

No matter what level you start at, (apologies to Terry Pratchett) its IP lawyers all the down.
[ link to this | view in thread ]
Ralphoo (profile), 20 Apr 2011 @ 9:12am

Monopolies write laws?
Who do you think is going to write those laws, Congress? (Loud laughter in background) They wouldn't have the slightest idea what to write.

Besides, if someone other than the big companies wrote our laws, it might weaken their hold on the markets. No "reasonable person" wants that to happen. (If you wanted that, you would no longer be a reasonable person.)
[ link to this | view in thread ]