If you are not getting the answer that you so desperately have wanted for the last 4 years then you sure haven't been asking the right question for 4 years. Hilarious.
No, I think the simple explanation is that Mike doesn't want to admit his personal beliefs on this issue. The amount of weaseling and the anger the question elicits tells me I'm hitting a sore spot. What's he hiding? Why won't he just tell us what he believes? Hmmm... This really isn't hard. But keep making excuses for him. He certainly appreciates it.
Not as hilarious as the excuses and reasons that you come out with. Priceless!
Please present these "excuses and reasons" that I've "come out with." I'll address your questions directly and honestly. Nice try, though. I'm sure Mike appreciates the help.
Translation: Show me where Mike says God exists or doesn't exist. You can't.
Mike has no problem whatsoever in giving us a definitive answer about his view as to criminal infringement. I'm not asking him to prove the existence of God, I'm just asking him also to give us his opinion of civil infringement. Keep making excuses. Mike appreciates it, I'm sure!
Your continued insistance on a black or white, yes or no answer reminded me of something
When have I ever demanded that the answer be "black or white"? Mike's answer for criminal infringement is black and white: "Copyright should never be a criminal issue at all." I don't know if his answer for civil infringement is also black and white, nor do I care. I just want the answer, and it can be as black, white, or gray as it takes so that we all have the answer. Keep coming up with excuses! In the meantime, I'll keep pointing out the obvious fact that Mike refuses to give us his opinion, no matter what color it is.
And guess what tool they're using to block you from actually owning the products you bought? Why copyright, of course. It's yet another example of how copyright is often used to block property rights rather than to create them.
If what you've bought is a license, then how are you not getting what you've bought? Nor do I understand how this blocks property rights. If somebody's bought only a license, then what property rights of theirs are being blocked? Your definition of blocked seems to be that somebody can't enforce right they don't actually have. I thought you liked reality. And how does copyright not create property rights? It creates them in the copyright owner. I know you hate this fact. But it's still reality.
You don't deserve answers. You'll figure this one one day.
I love all the excuses. He's already answered. You don't deserve an answer. He'd answer if somebody other than you were asking. But we never ever get is the answer. Hilarious.
Please read the articles referenced previously and you will find your answer (it isn't be a monosyllabic answer so you may not understand it).
If you think you found the answer, then just tell us what the answer is. I love all these claims that the answer has been given. Yet, no one can ever say what the answer is. This isn't hard.
He has expressed it. Many times. Just because his actual position is not your preferred one that allows you to attack him, that doesn't mean it hasn't been stated.
I'll ask you the same thing I ask everybody who claims this. If he's answered it so many times, as you contend, then it should be easy for you to tell me what his answer is: Does Mike think that copyright should be a civil matter "at all"?
That's right. He's been dodging taking a definitive position on this for years. He's obviously capable of forming opinions ("Copyright should never be a criminal issue at all."). Yet, he won't tell us what his opinion is on whether it should ever be a civil matter "at all." The fact that he avoids discussing this issue should tell you something.
It's a simple question. He has no trouble in the post stating a definitive position: "Copyright should never be a criminal issue at all." He's not so "agnostic" that he couldn't express an opinion about that. I just wonder if he also thinks that copyright should never be a civil issue at all. I don't see why he can't express an opinion about that too.
We already know all your tactics AJ. They didn't work the last time you were here. They won't work now.
Can we just get it over with and fast forward to the point where you just make barnyard animal noises?
You only have two modes of operation here. Abusive troll. Or, retarded troll pretending to be a cow or a chicken.
I think instead I'll continue to be one of the only people on TD who engages on matters substantively and directly, and I'll continue to point out that Mike is too scared to ever take a definitive position on this issue. I don't think I'm an "abusive troll" to point out that I think Mike is dishonest about his views on infringement. If he wants to clear the air and let us all know what he truly believes, he could have the matter cleared up quite quickly. But he doesn't want that. Hmmm...
I'm just asking Mike's opinion. I think the more apt question is why Mike can't ever take a definitive position when it comes to such things. I mean, he's such an honest guy, and he values truth and journalistic integrity so much. So what's the hold-up?
Yeah, let's take a very complex topic and break it down to a simple "yes or no" choice. There's no right answer to your question because you ignore all the other possible positions. This is the same as asking an agnostic "do you believe in God or not? You either believe He exists or you don't!" It ignores that there are other options.
In your question, what is your definition of infringement? Is it the current law's definition of infringement? What if Mike belived there should be civil penalties for infringement, but that current law considers uses to be infringing that he believes should not be considered infringement? Is he then for or against?
It also assumes that infringement is inherently something that needs recourse. This is not necessarily true, yet your question requires him to respond in a black-and-white way to a question with a large amount of complexity and variation in the way you answer.
It's not that Mike isn't clear on his positions, it's just that you're apparently so focused on your assumptions that you can't see them. He may respond, or he may never read what you wrote because he might have other things he's doing rather than reading every comment on every article here.
Either way your question isn't answerable because it assumes a shallow understanding of the topics at hand.
Um, wow. I'm talking about acts that are actually civil infringement under the actual law. I'm not saying "that infringement is inherently something that needs recourse," I'm asking Mike if he believes that such acts should be subject to any civil recourse. If you believe that it's untrue "that Mike isn't clear on his positions," then please tell me what you think you think Mike's position is as to recourse for civil infringement. And please tell me why you think that. The notion that my "question isn't answerable" is total nonsense. Mike is able to form an opinion about criminal infringement. I just want his opinion on civil infringement whatever it may be, and with whatever nuances and subtleties he thinks are proper. This isn't hard.
There's a real trend here. According to the latest numbers, Twitter does not comply with nearly 1 in 4 takedown notices it receives; Wikimedia complies with less than half; and WordPress complies with less than two-thirds. Each organization explains in its report that the notices with which they don't comply are either incomplete or abusive.
Parker--
How many, or what percentage, of the notices are abusive, as opposed to merely incomplete? That number would be a lot more useful.
Even if you absolutely hate The Pirate Bay and think it's the worst thing that's ever happened to the entertainment industry (a ridiculous view, but nonetheless...), the idea that the legal recourse against it should have been criminal, rather than civil charges, is mind-boggling.
Hey Mike--
Do you think that there should be any civil recourse against infringers? You have no problem whatsoever in claiming that you think there shouldn't be criminal recourse, so obviously you are able to form opinions on the matter. Please, let us know, directly and honestly, whether you think there should be any civil recourse against those who infringe. I'm not asking whether you think, given that there is some recourse, that recourse should be civil and not criminal. I'm asking whether you think there should be any civil recourse against infringers, all weasel words aside.
I look forward to your direct and honest answer--though I doubt very much there will be one. It's one thing to say that you think the recourse should never be criminal. But it's quite another thing to say that you think any civil recourse is appropriate. Assuming you do answer, which I'm almost positive you won't (as you refuse to ever be pinned down on a position), please explain why you think (or don't think) any civil recourse is appropriate. Thanks.
What does this mean? If the trademark holder was unable to stop the use of someone else selling a related good from using their mark then what would have been the point?
It used to be that a markholder only had rights over the use of his mark for the SAME good. Now that confusion is the test, the markholder has control over the use of his mark for related goods. The classic example here is the Aunt Jemima case. Aunt Jemima sold pancake mix. Another company decided to sell pancake syrup using the Aunt Jemima name. Under the traditional property view of marks, this would have been OK since the markholder for the mix didn’t sell syrup. But the court decided that there could be confusion since the goods were related, and it found infringement. That’s an expansion of trademark rights based on confusion.
Fair enough. but it still shows congresses original attempt to pass these laws under a section of the constitution intended to serve a public good.
Yet, it says nothing about trademark law as it developed in England and then in state common and statutory law. Moreover, whether it’s based on the Copyright and Patent Clause or not, it’s seen as promoting the public good. All property rights promote the public good—not just those that derive from Clause 8 of Section 8 of Article I.
From Wikipedia
"From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order."
The government protects both natural and civil rights. Take, for example, the First Amendment. There is a natural right to free speech, but we have a constitutional amendment that explicitly protects it.
Natural rights/freedoms are not something that can be granted by government. IP requires government. It requires government to take away a natural freedom/right that I have in nature, namely, the right to freely copy as I please. This right exists in nature absent government and is thus a natural right. IP is not a natural right for the very reason that government is required to enact it. At least not by any reasonable definition of natural right. To argue otherwise is to dishonestly pervert the definition of a natural right to mean something other than what most people consider it to mean. By the law of nature (as Thomas Jefferson says) I can freely copy anything I please and property belongs to whoever currently possesses it. Property rights are an act of government and not a result of natural rights. and like other laws (including property laws) IP should only be intended to serve the public interest.
Most jurists in the eighteenth and nineteenth centuries subscribed to a natural law theory of property. Under Roman natural law, the first person to take possession of an object has a claim to it. As Locke later reasoned, people have a claim to the fruits of their labors under natural law. That the law explicitly prescribes the property interest doesn’t detract from the fact that these prescriptions are based in natural law. There’s been tons written about this over the past three centuries. I suggest you do some Googling.
You only consider IP to be a natural right because you're using a different definition of natural right than the rest of us. You don't get to just make up your own definition of the word 'natural right' because you don't like the definition everyone else uses and then claim that IP is a natural right. That's not how you get taken seriously. It's a quick way to be thought of as dishonest.
No offense, but your understanding appears to be based upon a quick read of a Wikipedia entry. Again, I suggest you read some academic writings on the subject. I would also suggest that you not jump to the conclusion that I’m being “dishonest” because you either don’t understand what I’m saying or don’t agree with me.
Nature does not grant you the privilege to prevent others from copying. Animals may copy each other or even humans and learn from each other. To copy from each other is something nature grants us. Copying is natural. Any government restrictions on nature is a restriction of our natural right. IP requires government and is a government restriction on natural rights.
You’re looking at it from the wrong perspective. Under natural law, one is entitled to the fruits of his labor. When an author labors to create a book, he has a property right in the book consistent with natural law. I’m grossly oversimplifying things, but that’s the gist.
Madison, who in Federalist 43 gave us his insight on the Copyright and Patent Clause, subscribed to the natural law view:
A power "to promote the progress of science and useful arts, by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries."
The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals. The States cannot separately make effectual provisions for either of the cases, and most of them have anticipated the decision of this point, by laws passed at the instance of Congress.
It’s a “right of common law” in Great Britain because it follows from natural law. And he thinks patents do as well, “with equal reason.”
I'm out the door and probably won't have time to respond until this weekend. Take care.
Which is exactly the point. If the primary purpose of trademark law was to prevent consumer confusion then it makes sense that trademark law was narrower than it is today because it doesn't need to be any broader than what's necessary to prevent consumer confusion. The author is trying to state an opinion against the evidence that goes against that opinion.
His point is that when trademarks were seen as simply property rights, the rights were narrower. It’s only when consumer confusion became the focus that the rights broadened. For example, under the property view, a markholder only had rights in his actual uses of the mark. The modern focus on confusion, instead of actual use, gives us things like the related goods doctrine, where the markholder controls uses of the mark for goods the markholder doesn’t actually sell. So the irony is that the move away from property accounts for the expansion.
and we're trying to discuss the original purpose of trademark law (at least in the U.S.).
What do the Founders have to do with that?
Fair enough. First of all it doesn't directly mention it as a natural right. Natural rights, by definition, don't come from government. They're rights that we try to prevent government from taking away (at least certain natural rights, not necessarily all of them). IP comes from government and so isn't a natural right because it doesn't meet the definition.
People form governments to protect their civil and natural rights. Neither is self-executing. You should read up on social contract theory.
That is trademark law is derived from the portion of the law in the constitution intended to promote the progress and serve a public interest. The primary beneficiaries are the public. Yes, protecting the legal right of the mark holder is a purpose (as the quotes you give suggest) but only as a means to the end of serving the public interest.
You’re completely misreading the opinion in the Trade-Mark Cases. The Supreme Court struck down the federal trademark statutes because Congress DID NOT have the authority to enact them under the Copyright and Patent Clauses. The Court left open the possibility that the Commerce Clause could support a federal trademark statute, if it conformed to the narrower understanding of the Commerce Clause that existed at the time. Congress did just that. So, no, you can’t point to the Copyright and Patent Clauses and deduce anything about trademarks.
After reading through some of it it still reads like a document written by industry shills often making unbacked assertions that are simply not true. Here is just one example
"Because those property rights were grounded in the natural rights theory of property accepted by most judges"
The founding fathers, such as Thomas Jefferson, did not believe government established property rights were natural rights. and to just assert that most early judges believed such a thing (along with many of the other very broad assertions made in that document) seems suspect.
You cut that sentence off. It says: “Because those property rights were grounded in the natural rights theory of property accepted by most judges in the nineteenth century, however, traditional trademark rights were considerably narrower than those recognized today.”
He’s talking about judges in the nineteenth century, not the founding fathers. You’re conflating two different things.
Examples of nineteenth century courts treating trademarks as property rights are plentiful. For example, a unanimous Supreme Court in 1879 said:
The right to adopt and use a symbol or a device to distinguish the goods or property made or sold by the person whose mark it is, to the exclusion of use by all other persons, has been long recognized by the common law and the chancery courts of England and of this country, and by the statutes of some of the States. It is a property right for the violation of which damages may be recovered in an action at law, and the continued violation of it will be enjoined by a court of equity, with compensation for past infringement.
In re Trade-Mark Cases, 100 U.S. 82, 92 (1879).
And then there’s the Supreme Court of California in 1865:
His right to the trade mark accrues to him from its adoption and use for the purpose of designating the particular goods he manufactures or sells, and although it has no value except when so employed, and indeed has no separate abstract existence, but is appurtenant to the goods designated, yet the trade mark is property, and the owner's right of property in it is as complete as that which he possesses in the goods to which he attaches it, and the law protects him in the enjoyment of the one as fully as of the other.
Derringer v. Plate, 29 Cal. 292, 294-95 (1865).
There are numerous examples of judges in the nineteenth century treating trademarks as property rights. The focus on consumer confusion was secondary, as explained in detail in McKenna’s article. The view was solidly based in natural law since the property rights derived from use, that is, labor.
"traditional trademark rights were considera-bly narrower than those recognized today. Specifically, a trademark owner was entitled to relief only against competitors that dishonestly marked their products and passed them off as those of the mark owner."
Perhaps because the original primary goal of these laws is to protect consumers which would make sense if the above were true (though that's not to say that as a secondary side effect goal they can't be used to protect producers. nothing wrong with protecting both). Yet the document tries to, without support, assert the opposite by saying
"Trade-mark law primarily sought to regulate the relationship between com-petitors; any benefits to consumers were secondary"
Sure seems like the opposite is true and even the document, which seems to acknowledge that it's fighting an uphill argument against a consensus that disagrees with it and against evidence that suggests otherwise (ie: the narrow nature of these laws curtailed to mostly protect consumers).
You’re not addressing any of the case law or treatises cited in the article. He cites numerous examples of courts explicitly saying that they’re protecting the markholder’s interests in the mark against misappropriation by others.
I think Mike is spot on. Trademark law was and should be about consumer, and not producer, protection.
Mike has proffered absolutely no evidence whatsoever to back up his assertion that the “real purpose of trademark law” is to protect consumers.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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No, I think the simple explanation is that Mike doesn't want to admit his personal beliefs on this issue. The amount of weaseling and the anger the question elicits tells me I'm hitting a sore spot. What's he hiding? Why won't he just tell us what he believes? Hmmm... This really isn't hard. But keep making excuses for him. He certainly appreciates it.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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Please present these "excuses and reasons" that I've "come out with." I'll address your questions directly and honestly. Nice try, though. I'm sure Mike appreciates the help.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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Mike has no problem whatsoever in giving us a definitive answer about his view as to criminal infringement. I'm not asking him to prove the existence of God, I'm just asking him also to give us his opinion of civil infringement. Keep making excuses. Mike appreciates it, I'm sure!
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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When have I ever demanded that the answer be "black or white"? Mike's answer for criminal infringement is black and white: "Copyright should never be a criminal issue at all." I don't know if his answer for civil infringement is also black and white, nor do I care. I just want the answer, and it can be as black, white, or gray as it takes so that we all have the answer. Keep coming up with excuses! In the meantime, I'll keep pointing out the obvious fact that Mike refuses to give us his opinion, no matter what color it is.
On the post: New Bill Designed To Stop Bogus Copyright Claims From Stopping You From Selling What You Own
If what you've bought is a license, then how are you not getting what you've bought? Nor do I understand how this blocks property rights. If somebody's bought only a license, then what property rights of theirs are being blocked? Your definition of blocked seems to be that somebody can't enforce right they don't actually have. I thought you liked reality. And how does copyright not create property rights? It creates them in the copyright owner. I know you hate this fact. But it's still reality.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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If you think you've located the answer, then just tell us what the answer is. You can't.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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I love all the excuses. He's already answered. You don't deserve an answer. He'd answer if somebody other than you were asking. But we never ever get is the answer. Hilarious.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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If you think you found the answer, then just tell us what the answer is. I love all these claims that the answer has been given. Yet, no one can ever say what the answer is. This isn't hard.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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I'll ask you the same thing I ask everybody who claims this. If he's answered it so many times, as you contend, then it should be easy for you to tell me what his answer is: Does Mike think that copyright should be a civil matter "at all"?
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On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
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Can we just get it over with and fast forward to the point where you just make barnyard animal noises?
You only have two modes of operation here. Abusive troll. Or, retarded troll pretending to be a cow or a chicken.
I think instead I'll continue to be one of the only people on TD who engages on matters substantively and directly, and I'll continue to point out that Mike is too scared to ever take a definitive position on this issue. I don't think I'm an "abusive troll" to point out that I think Mike is dishonest about his views on infringement. If he wants to clear the air and let us all know what he truly believes, he could have the matter cleared up quite quickly. But he doesn't want that. Hmmm...
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There's nothing "make believe" about it. Mike will not answer this question, nor any question like it. Ask him yourself.
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I'm just asking Mike's opinion. I think the more apt question is why Mike can't ever take a definitive position when it comes to such things. I mean, he's such an honest guy, and he values truth and journalistic integrity so much. So what's the hold-up?
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In your question, what is your definition of infringement? Is it the current law's definition of infringement? What if Mike belived there should be civil penalties for infringement, but that current law considers uses to be infringing that he believes should not be considered infringement? Is he then for or against?
It also assumes that infringement is inherently something that needs recourse. This is not necessarily true, yet your question requires him to respond in a black-and-white way to a question with a large amount of complexity and variation in the way you answer.
It's not that Mike isn't clear on his positions, it's just that you're apparently so focused on your assumptions that you can't see them. He may respond, or he may never read what you wrote because he might have other things he's doing rather than reading every comment on every article here.
Either way your question isn't answerable because it assumes a shallow understanding of the topics at hand.
Um, wow. I'm talking about acts that are actually civil infringement under the actual law. I'm not saying "that infringement is inherently something that needs recourse," I'm asking Mike if he believes that such acts should be subject to any civil recourse. If you believe that it's untrue "that Mike isn't clear on his positions," then please tell me what you think you think Mike's position is as to recourse for civil infringement. And please tell me why you think that. The notion that my "question isn't answerable" is total nonsense. Mike is able to form an opinion about criminal infringement. I just want his opinion on civil infringement whatever it may be, and with whatever nuances and subtleties he thinks are proper. This isn't hard.
On the post: New Company Transparency Reports Help Quantify DMCA Abuse
Parker--
How many, or what percentage, of the notices are abusive, as opposed to merely incomplete? That number would be a lot more useful.
On the post: Hollywood Insiders: Directors, Actors, Producers, Camera People And More Demand Peter Sunde Be Freed & Treated With Dignity
Hey Mike--
Do you think that there should be any civil recourse against infringers? You have no problem whatsoever in claiming that you think there shouldn't be criminal recourse, so obviously you are able to form opinions on the matter. Please, let us know, directly and honestly, whether you think there should be any civil recourse against those who infringe. I'm not asking whether you think, given that there is some recourse, that recourse should be civil and not criminal. I'm asking whether you think there should be any civil recourse against infringers, all weasel words aside.
I look forward to your direct and honest answer--though I doubt very much there will be one. It's one thing to say that you think the recourse should never be criminal. But it's quite another thing to say that you think any civil recourse is appropriate. Assuming you do answer, which I'm almost positive you won't (as you refuse to ever be pinned down on a position), please explain why you think (or don't think) any civil recourse is appropriate. Thanks.
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It used to be that a markholder only had rights over the use of his mark for the SAME good. Now that confusion is the test, the markholder has control over the use of his mark for related goods. The classic example here is the Aunt Jemima case. Aunt Jemima sold pancake mix. Another company decided to sell pancake syrup using the Aunt Jemima name. Under the traditional property view of marks, this would have been OK since the markholder for the mix didn’t sell syrup. But the court decided that there could be confusion since the goods were related, and it found infringement. That’s an expansion of trademark rights based on confusion.
Fair enough. but it still shows congresses original attempt to pass these laws under a section of the constitution intended to serve a public good.
Yet, it says nothing about trademark law as it developed in England and then in state common and statutory law. Moreover, whether it’s based on the Copyright and Patent Clause or not, it’s seen as promoting the public good. All property rights promote the public good—not just those that derive from Clause 8 of Section 8 of Article I.
From Wikipedia
"From this shared starting point, social contract theorists seek to demonstrate, in different ways, why a rational individual would voluntarily consent to give up his or her natural freedom to obtain the benefits of political order."
http://en.wikipedia.org/wiki/Social_contract
The government protects both natural and civil rights. Take, for example, the First Amendment. There is a natural right to free speech, but we have a constitutional amendment that explicitly protects it.
Natural rights/freedoms are not something that can be granted by government. IP requires government. It requires government to take away a natural freedom/right that I have in nature, namely, the right to freely copy as I please. This right exists in nature absent government and is thus a natural right. IP is not a natural right for the very reason that government is required to enact it. At least not by any reasonable definition of natural right. To argue otherwise is to dishonestly pervert the definition of a natural right to mean something other than what most people consider it to mean. By the law of nature (as Thomas Jefferson says) I can freely copy anything I please and property belongs to whoever currently possesses it. Property rights are an act of government and not a result of natural rights. and like other laws (including property laws) IP should only be intended to serve the public interest.
Most jurists in the eighteenth and nineteenth centuries subscribed to a natural law theory of property. Under Roman natural law, the first person to take possession of an object has a claim to it. As Locke later reasoned, people have a claim to the fruits of their labors under natural law. That the law explicitly prescribes the property interest doesn’t detract from the fact that these prescriptions are based in natural law. There’s been tons written about this over the past three centuries. I suggest you do some Googling.
You only consider IP to be a natural right because you're using a different definition of natural right than the rest of us. You don't get to just make up your own definition of the word 'natural right' because you don't like the definition everyone else uses and then claim that IP is a natural right. That's not how you get taken seriously. It's a quick way to be thought of as dishonest.
No offense, but your understanding appears to be based upon a quick read of a Wikipedia entry. Again, I suggest you read some academic writings on the subject. I would also suggest that you not jump to the conclusion that I’m being “dishonest” because you either don’t understand what I’m saying or don’t agree with me.
Nature does not grant you the privilege to prevent others from copying. Animals may copy each other or even humans and learn from each other. To copy from each other is something nature grants us. Copying is natural. Any government restrictions on nature is a restriction of our natural right. IP requires government and is a government restriction on natural rights.
You’re looking at it from the wrong perspective. Under natural law, one is entitled to the fruits of his labor. When an author labors to create a book, he has a property right in the book consistent with natural law. I’m grossly oversimplifying things, but that’s the gist.
Madison, who in Federalist 43 gave us his insight on the Copyright and Patent Clause, subscribed to the natural law view:It’s a “right of common law” in Great Britain because it follows from natural law. And he thinks patents do as well, “with equal reason.”
I'm out the door and probably won't have time to respond until this weekend. Take care.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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His point is that when trademarks were seen as simply property rights, the rights were narrower. It’s only when consumer confusion became the focus that the rights broadened. For example, under the property view, a markholder only had rights in his actual uses of the mark. The modern focus on confusion, instead of actual use, gives us things like the related goods doctrine, where the markholder controls uses of the mark for goods the markholder doesn’t actually sell. So the irony is that the move away from property accounts for the expansion.
and we're trying to discuss the original purpose of trademark law (at least in the U.S.).
What do the Founders have to do with that?
Fair enough. First of all it doesn't directly mention it as a natural right. Natural rights, by definition, don't come from government. They're rights that we try to prevent government from taking away (at least certain natural rights, not necessarily all of them). IP comes from government and so isn't a natural right because it doesn't meet the definition.
People form governments to protect their civil and natural rights. Neither is self-executing. You should read up on social contract theory.
That is trademark law is derived from the portion of the law in the constitution intended to promote the progress and serve a public interest. The primary beneficiaries are the public. Yes, protecting the legal right of the mark holder is a purpose (as the quotes you give suggest) but only as a means to the end of serving the public interest.
You’re completely misreading the opinion in the Trade-Mark Cases. The Supreme Court struck down the federal trademark statutes because Congress DID NOT have the authority to enact them under the Copyright and Patent Clauses. The Court left open the possibility that the Commerce Clause could support a federal trademark statute, if it conformed to the narrower understanding of the Commerce Clause that existed at the time. Congress did just that. So, no, you can’t point to the Copyright and Patent Clauses and deduce anything about trademarks.
On the post: Intellectual Property Maximalist Lobbying Group Proposes A New Trademark SOPA (Plus Girl Scout Badges...)
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"Because those property rights were grounded in the
natural rights theory of property accepted by most judges"
The founding fathers, such as Thomas Jefferson, did not believe government established property rights were natural rights. and to just assert that most early judges believed such a thing (along with many of the other very broad assertions made in that document) seems suspect.
You cut that sentence off. It says: “Because those property rights were grounded in the natural rights theory of property accepted by most judges in the nineteenth century, however, traditional trademark rights were considerably narrower than those recognized today.”
He’s talking about judges in the nineteenth century, not the founding fathers. You’re conflating two different things.
Examples of nineteenth century courts treating trademarks as property rights are plentiful. For example, a unanimous Supreme Court in 1879 said:In re Trade-Mark Cases, 100 U.S. 82, 92 (1879).
And then there’s the Supreme Court of California in 1865:Derringer v. Plate, 29 Cal. 292, 294-95 (1865).
There are numerous examples of judges in the nineteenth century treating trademarks as property rights. The focus on consumer confusion was secondary, as explained in detail in McKenna’s article. The view was solidly based in natural law since the property rights derived from use, that is, labor.
As far as Jefferson goes, I recommend this piece: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=892062
The document even states
"traditional trademark rights were considera-bly narrower than those recognized today. Specifically, a trademark owner was entitled to relief only against competitors that dishonestly marked their products and passed them off as those of the mark owner."
Perhaps because the original primary goal of these laws is to protect consumers which would make sense if the above were true (though that's not to say that as a secondary side effect goal they can't be used to protect producers. nothing wrong with protecting both). Yet the document tries to, without support, assert the opposite by saying
"Trade-mark law primarily sought to regulate the relationship between com-petitors; any benefits to consumers were secondary"
Sure seems like the opposite is true and even the document, which seems to acknowledge that it's fighting an uphill argument against a consensus that disagrees with it and against evidence that suggests otherwise (ie: the narrow nature of these laws curtailed to mostly protect consumers).
You’re not addressing any of the case law or treatises cited in the article. He cites numerous examples of courts explicitly saying that they’re protecting the markholder’s interests in the mark against misappropriation by others.
I think Mike is spot on. Trademark law was and should be about consumer, and not producer, protection.
Mike has proffered absolutely no evidence whatsoever to back up his assertion that the “real purpose of trademark law” is to protect consumers.
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