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3D Printing and Technology Monetization

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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23 Responses

  1. Brett Bellmore says:

    OTOH, anything which involves large numbers of people producing things themselves has the potential to involve an increase in innovation.

    We have to remember that the patent system, (And I speak as somebody with a couple.) does not exist for the benefit of patent holders. It exists, explicitly, for the benefit of everybody else.

  2. Shag from Brookline says:

    Perhaps Brett’s:

    “We have to remember that the patent system, (And I speak as somebody with a couple.) does not exist for the benefit of patent holders. It exists, explicitly, for the benefit of everybody else.”

    may be based on his personal inventiveness as providing no benefit to himself. But surely Brett is not speaking for all patent holders (whether the actual inventor or a transferee) who fight like the devil to protect their turfs.

  3. Brett Bellmore says:

    It’s based on the actual text of the clause in question: “To…promote the Progress of Science and useful Arts…” is the reason explicitly given for extending the limited monopoly.

  4. Shag from Brookline says:

    For some reason (perhaps it was too long?), Brett failed to include the entire provision:

    “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.”

    Or perhaps the omitted portion suggested that Authors and Inventors might benefit from such exclusive rights by securing for limited times the benefit of their respective Writings and Discoveries. Maybe, like the introductory Militia Clause in the Second Amendment, the words omitted by Brett were superfluous.

  5. Brett Bellmore says:

    Shag, nobody doubts for a moment that patents allocate some benefits to their holders. I quoted the part which explained WHY you have a patent and copyright system, and it’s not in order to benefit people who get patents and copyrights. It’s in order to benefit the rest of us by promoting progress.

    Mules enjoy carrots, but you don’t hang a carrot in front of the mule for the mule’s benefit.

  6. Shag from Brookline says:

    Brett’s sort of mea culpa:

    “Shag, nobody doubts for a moment that patents allocate some benefits to their holders.”

    ignores the extent of royalties (and the taxes they generate) that result from Writings and Discoveries afforded limited time monopolies to their owners. Yes, wirings and discoveries so protected do contribute to the Progress of Science and useful Arts over time, but at a price. This can be considered, in the long run of progress, a win-win constitutional provision for creators and the public at large, provided that Congress does not expand such limited time excessively (as perhaps Congress has done more in the Writings than Discoveries fields). So contrary to Brett’s #1, the system does exist for the benefit of owners and at the same time provides for the Progress of Science and useful Arts in the long run benefitting all.

    As I understand it, the patent/copyright clause addressed concerns with monopolies by providing limited time protections, leaving it to Congress to determine the extent of limited time, which has varied since the adoption of the Constitution. Perhaps there are lobbyists out their hawking Congress for more limited time protections. Some are making a lot of gelt on patents and copyrights and it’s not just the legal profession. Just ask Apple – bite me and you’re in trouble.

  7. Joe says:

    “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”

    IOW, it is there to benefit everyone, including those who hold the patents and copyrights. It is helpful to look at the big picture. See also the 2A, which doesn’t state a principle to protect gun owners in particular, but protects gun owners for the protection of a free state as a whole. OTOH, like patent and copyright owners, some gun owners seem sometimes to think it is just about them. This is a general comment.

  8. Brett Bellmore says:

    Shag, aside from your absolute determination that I always have to be wrong, I’m not sure where we disagree. The copyright clause gives a benefit to inventors and authors, in order to benefit everybody, by encouraging them to invent and write. Like I said, you don’t hang a carrot in front of the mule for the mule’s benefit, even if the mule does like the carrot.

    Unfortunately, the system has been abused to benefit the owners of copyrights and patents at the expense of everybody else. That will especially be the case if patents are used to block individual acts of 3d printing, not for sale.

  9. Shag from Brookline says:

    Brett, I am in no way absolutely determined to always prove you wrong. I merely challenge statements you make from time to time. I usually use your own words to demonstrate that you are wrong. For example, in #1 you stated:

    “We have to remember that the patent system, … does not exist for the benefit of patent holders. It exists, explicitly, for the benefit of everybody else.”

    The proof is in the entire patent/copyright clause and not just in the excised portion you referenced in #3.

    Now, in #10, you stated:

    “Unfortunately, the system has been abused to benefit the owners of copyrights and patents at the expense of everybody else. That will especially be the case if patents are used to block individual acts of 3d printing, not for sale.”

    This seems contradictory to your position in #1.

    As to abuses of the system, I think a case can be made, more so on copyrights than on patents.

    Regarding your carrot/mule whimsy:

    ” Like I said, you don’t hang a carrot in front of the mule for the mule’s benefit, even if the mule does like the carrot.”

    it suggests you might think the fertilizer produced is the real benefit. But royalties can provide a lot of caviar (and other goodies) to the owners for much longer periods of time than the mule’s enjoyment of a carrot; and unlike most mules, the owner can pass on the benefits to his/her progeny, heirs, etc, for substantial periods of time in the case of copyrights.

  10. Shag from Brookline says:

    Joe’s comment (#7) on the Second Amendment brings to mind the interesting article at Truthout today by Thom Hartmann titled “The Second Amendment was Ratified to Preserve Slavery.”

  11. Joe says:

    Missing the forest for a single tree Mr. Hartmann.

    Yes, the militia was there in part to deal with slave “insurrections” (see Art. I for purposes of calling up the militia), but that was just ONE reason, only one sort of insurrection (Shay’s Rebellion came to mind — he should respect the popular movements involved there) in fact.

    Myopic visions of history and text are a problem wherever they arise.

  12. Shag from Brookline says:

    But add that single tree to other provisions in the Constitution that supported slavery and slaveowners (without actually mentioning slaves or slavery) and you end up with a forest that led to Dred Scott, the Civil War, etc. Historian Paul Finkelman has detailed many such provisions in addition to the more obvious ones; see

    http://www.h-net.org/reviews/showrev.php?id=474

  13. Joe says:

    Oh that opens up a whole different debate.

    I recommend “The Slaveholding Republic: An Account of the United States Government’s Relations to Slavery” by
    Don E. Fehrenbacher, who also wrote a major work on that ruling too.

    Anyway, the article suggests slavery was the reason for the 2A & that’s fictional. MA, which abolished slavery in the 1780s, supported the provision as much as South Carolina.

  14. In my not-so-humble opinion, all this bickering is silly; Brett was not incorrect about the stated reason. Indeed, the purpose is to promote progress, and the method is to grant exclusive rights to creators. This ends up benefitting both society and inventors, but that isn’t a reflection of the stated purpose.

  15. Shag from Brookline says:

    Ms. Schinn’s “not-so-humble opinion” (whatever that means) in claiming “Brett was not incorrect about the stated reason” presumably aims at Brett’s statement in #!:

    “We have to remember that the patent system, … does not exist for the benefit of patent holders. It exists, explicitly, for the benefit of everybody else.”

    Or does she aim at Brett’s apparently contradictory statement in #10:

    “Unfortunately, the system has been abused to benefit the owners of copyrights and patents at the expense of everybody else. That will especially be the case if patents are used to block individual acts of 3d printing, not for sale.”

    And in #5 Brett stated:

    “Shag, nobody doubts for a moment that patents allocate some benefits to their holders.”

    Consider the recent patent litigation that Apple won with some substantial benefits as the owner of patents.

    Which is it, Ms. Shinn?

    By the way, the progress of science results to a significant extent from new patents providing some benefits to their owners. Consider the advances (progress) of technology in more recent years via the issuance of patents that provide mucho royalties and other protections to patent owners.

    And how, pray tell, is the promotion of the progress of science and useful arts not for the benefit of both society and inventors (and writers) as suggested by Ms. Shinn in her closing sentence, considering the express words of the patent/copyright clause of the Constitution:

    “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.”

    By the way, that clause would seem to support the concept of a living constitution, recognizing progress. Let’s hear from originalists on this.

  16. Brett Bellmore says:

    Shag, I don’t for a moment believe the concept of using a carrot instead of a stick flies right over your head. Just once in your life, try not being contrary.

    “Living” constitutions have nothing to do with progress, and originalists do not deny progress happens in various fields, including the design of constitutions. Rather, the argument is whether you get to ‘change’ the meaning of a constitution without bothering to amend it, thus circumventing stakeholders who are explicitly granted the power to refuse to approve of changes.

  17. Shag from Brookline says:

    Now Brett is introducing the “stick” into his carrot/mule “whimsy.” Where does the “stick” fit with the patent/copyright clause? Did Apple receive only a carrot with the patents it owned involved in the recent humongous award Apple received? Wikipedia has a short take on “carrot and stick” that also discusses “carrot or stick.” I don’t know which Brett had in mind with his “whimsy.”

    I recall the story of a man pulling on his mule’s harness rope to no avail. A stranger said that was not the way to move the mule about. So the mule owner responded “Since you’re so smart, you show me how.” So the stranger picked up a handy 2 by 4 and whacked the mule square on the head, following which the mule docilely moved as directed by the harness rope, and the stranger said “First you’ve got to get its attention.”

    By the way, Article V was one of the not-so-subtle means whereby the slave states could protect their chattel slavery, providing no hope or change for those who came in chains.

  18. Joe says:

    Lauren D. Shinn’s “not so humble opinion” might be clarified by checking out her interesting looking blog.

  19. Shag from Brookline says:

    Joe, I was reminded this morning of the meaning of “humble” as I read an obit of Stan Musial. One of the beginning words described Stan the Man as “humble.” Babe ruth was fading in my infancy but I do recall Joe DiMaggio and his NY Yankees teams, as well as Ted Williams more in my back yard. I was a member of the Boston Braves’ Knothole Gang in the early 1940s and probably saw Stan play there. Alas, the Braves departed Boston after 1953 and that limited my exposure to Stan other than on Tv. He was a great ballplayer. And he was “humble.”

  20. Shag from Brookline says:

    Joe, I take your point in #13 on the reason for the Second Amendment, but with a caveat.

    I tried Googling in an effort to locate a credible work on the ratification of the Bill of Rights comparable to Pauline Maier’s “Ratification” on the Constitution, without success. Perhaps Maier or others may be working on such a project.

    Maier’s “Ratification” is not irrelevant on the Bill of Rights as the need for a bill of rights was extensively discussed and debated in a number of state ratification proceedings on the Constitution; some members opposed ratification of the Constitution without a bill of rights. Congress did enact the Bill of Rights in 1780 shortly after the Constitution was ratified.; and the Bill of Rights was ratified in 1791.

    With respect to the Second Amendment, it took 217 years for SCOTUS in Heller to declare that the Second Amendment involves an individual rather than a collective right, in a 5-4 decision. Both the majority and the dissents relied upon history. Some historians and legal scholars have seriously questioned the history relied upon by both sides in Heller, including history with respect to the majority’s dicta on limitations that might apply to Second Amendment rights outside the home.

    Then in 2010 in McDonald v. Chicago SCOTUS, again 5-4, declared that per the 14th Amendment the Second Amendment was incorporated to apply to the states, again with dicta virtually identical to Heller’s, all this more than 140 years following the ratification of the 14th Amendment.

    Via my Googling, I accessed J. Gordon Hylton’s “Virginia and the Ratification of the Bill of Rights, 1789-1792,” 25 Univ. of Richmond L.R. 433, 1991, Here’s the first paragraph:

    “Historians and constitutional scholars have paid scant attention to the process by which the states ratified the Bill of Rights. The states’ ratifying conventions of 1787 and 1788 have been examined in great detail, as have the debates of the first Congress which led to the presentation of the Bill of Rights to the states. Scholars, however, have treated the ratification of the first ten amendments as little more than an historical formality. Why more than two full years passed between the Congressional adoption of the proposed amendments and the approval by the requisite number of states has never been adequately answered.”

    In the text of Hylton’s article there is no specific discussion of the Second Amendment. However, Appendix I includes “Amendments Proposed by Virginia Convention June 27, 1788” (i.e., the Convention on the Constitution) that sets forth:

    “Seventeenth, That the people have a right to keep and bear arms; that a well regulated Militia composed of the body of the people trained to arms is the proper, natural and safe defence of a free State. That standing armies in time of peace are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the Community will admit; and that in all cases the military should be under strict subordination to and governed by the Civil power.”

    and

    “Nineteenth, That any person religiously scrupulous of bearing arms ought to be exempted upon payment of an equivalent to employ another to bear arms in his stead.”

    Appendix I also includes, without any date, “Amendments to the Body of the Constitution” that includes:

    “Eleventh, That each State respectively shall have the power to provide for organizing, arming and disciplining it’s [sic] own Militia, whenever Congress shall omit or neglect to provide for the same. That the Militia shall not be subject to Martial law, except when in actual service in time of war, invasion, or rebellion; and when not in the actual service of the United States, shall be subject only to such fines, penalties and punishments as shall be directed or inflicted by the laws of its own State.”

    Hylton’s “Conclusion” begins:

    “The Virginia ratification of the Bill of Rights was part of the fabric of Virginia politcs of the late eighteenth century, and as such, it offers the modern citizen little direct guidance as to either the meaning of its provisions or the proper role it ought to play in the contemporary American constitutional system. The experience did, however, help establish a pattern of divergent attitudes toward the Constitution, which ultimately would be a recurring theme in the history of the Old Dominion.”

    and closes with:

    “Finally, it is ironic that the Bill of Rights has in the twentieth century, come to stand for a constitutional principle quite different from what late eighteenth century Virginians understood it to represent. Initially endorsed as a mechanism for protecting the rights of the individuals from an oppressive national government and for assuring the defenders of state sovereignty that they had nothing to fear, it now, through the incorporation of the Bill of Rights into the Fourteenth Amendment, operates as a powerful limitation on the sovereign power of the states. It has provided a constitutional mechanism through which a single, uniform national standard has been imposed on the states, and in doing so has led to a realization of the very fear that led Virginia antifederalists to oppose its ratification more than two centuries ago.”

    Returning to historian Paul Finkelman (comment #12), my Googling provided access to an H-Law review of Finkelman’s “Slavery and the Founders: Race and Liberty in the Age of Jefferson” (1996). Reviewer Lester G. Lindley states:

    “In addition to the Constitution’s direct protections [of slavery[, Finkelman also found thirteen protections … [listing several of them].” The reviewer makes no mention of the Second Amendment, so I’ll have to check out Finkelman’s book for his view.

    Thom Hartmann may have been employing “law office” history in his view of the Second Amendment. But how different is this from the history employed in Heller, by both sides?

    Maier’s “Ratification” furnishes the ratifiers’ various understandings of the Constitution to aid in determining the meaning of its provisions at the time of ratification. Perhaps a similar project on the ratification of the Bill of Rights might be helpful in providing the various understandings of the ratifiers of the Bill of Rights, including the Second Amendment, to aid in determining the meaning of its provisions at the time of its ratification. But then again, we have the view of Hylton noted above regarding the Virginia ratification.

    So my caveat is, who knows what more history may be discovered in the future to inform us of the ratifiers’ understandings of the Bill of Rights, including the Second Amendment, in aid to determining the meaning of the Bill of Rights at the time of its ratification (assuming the current version of originalism would govern its interpretation/construction).

  21. Joe says:

    As to the ratification of the BOR, I don’t know what “credible work” means specifically. Online, The Founder’s Constitution provides various documents. I found “The Birth of the Bill of Rights: 1776-1791″ by Robert Rutland, a work [obtained used, the cover price on my copy is 95 cents] more of Shag’s era than mine credible. Prof. Amar has a book on the Bill of Rights and the Constitution generally, though not as much of an opus as Maier. http://law.justia.com/constitution/us/amendment-02/ provides some source material. “Original Meanings: Politics and Ideas in the Making of the Constitution” by Jack Rackove is of some value.

    The practice of “law office history” is well known but there are levels there. The major debate on the 2A has been if it specifically is an individual right or is it more of a collective one in which the state uses the resource of the people (sort of like the jury) for militia duty. The idea that either one was basically specifically for slavery (it’s not refuted that guns and the militia in particular was IN PART of importance to defend slavery) is another matter. I used to listen to him when I had a chance but that’s one of his more off notions. imho

  22. Shag from Brookline says:

    Prof. Akhil Reed Amar was a guest of Stephen Colbert last week to discuss his new book “America’s Unwritten Constitution,” which I have not read. The discussion reminded me of a provision in Appendix I of Hylton’s article referenced in #20 under the heading “Amendments to the Body of the Constitution”:

    “Nineteenth, That some Tribunal other than the Senate be provided for impeachments of Senators.”

    Amar had referenced the role of the Vice President with the Senate and how that might play out in an impeachment trial of the Vice President.

    Both situations present conflicts of interest that the written Constitution does not seem to address.

    ****

    In my #20, I neglected to point to Hylton’s Section “X. Virginia’s Ratification of the Bill of Rights: An Appraisal” where he states:

    “The limited significance of the Bill of Rights at the time of its adoption was not lost on contemporaries. Alexander Hamilton, writing in 1801, noted that in its final form, the Bill of Rights had accomplished ‘scarcely any of the important objections which were urged [by the critics of the new constitution], leaving the structure of the government, and the mass and distribution of its powers where they were.’ The amendments were, in Hamilton’s mind, ‘too insignificant to be with any sensible man a reason for being reconciled to the system if he thought it originally bad.’ There is also little reason to believe that Madison himself ever departed fundamentally from his initial characterization of his amendments as the product of political experience. In an 1821 letter to John G. Jackson, in which he reflected upon the events of the late 1780′s, Madison described the amendments he introduced on the floor of Congress as ‘safe, it not necessary’ and ‘politic, if not obligatory.’ Finally, United States Supreme Court Justice Joseph Story, writing from the vantage point of the late 1820′s echoed Hamilton’s evaluation, attributing the original demand for a Bill of Rights to a ‘matter of very exaggerated declamation and party zeal, for the mere purpose of defeating the Constitution.’”

    Hylton had prefaced this with this observation:

    “Further evidence was provided in 1798 by the Congressional adoption of the Federalist Sedition Act, which made it a crime to criticize the national government and its leadership, in spite of the guarantee of free speech in the new first amendment.” That Act came about only 7 years after the Bill of Rights was ratified.

  23. Shag from Brookline says:

    Over at the VC, Randy Barnett’s recent post celebrating Lysander Spooner’s 205th birthday provides a link to Helen K. Knowles’ “Seeing the Light: Lysander Spooner’s Increasing Popular Constitutionalism.” In the 1840s Spooner had written several papers on the unconstitutionality of slavery. But in 1850 and thereafter, Spooner lost faith in the judiciary, including with the compromise on the question of slavery in the territories, the 1850 Fugitive Slave Act and Justice Taney’s decision in Dred Scott. Knowles has done a magnificent job of demonstrating changers in Spooner’s views on slavery and the Constitution, including this beginning at the bottom of page 19:

    “In the face of this judicial reality, and to ensure the ‘maintenance’ of the Constitution, Spooner encouraged popular resistance to such travesties of justice. Indeed, argued Spooner, the Constitution gave The People an ‘absolute and unqualified’ Constitutional ‘right’ to do so. He pointed to the Second Amendment as evidence of this right. Spooner wrote that the language of the Amendment … ‘implies the right to use’ these arms, and ‘[t]his is the only remedy suggested by the Constitution, and is necessarily the only remedy that can exist, when the government becomes so corrupt as to afford no peaceable one.’”

    Knowles continues:

    “Scholars have failed to reach consensus about whether the Second Amendment is the source ( or has, throughout history, been a source) of a legitimate populist constitutionalist response to the problems associated with judicial supremacy.44″ [No direct reference is made to either Heller or McDonald.]

    Perhaps these changes in Spooner are similar to Sandy Levinson’s “Second Thoughts” on his “Constitutional Faith.”

    I have read a number of Spooner’s writings and much of his biography as well as articles on Spooner in connection with an ongoing research project focusing on events in the 1850s in the Boston/MA abolition movement. He is a most interesting character. Knowles’ article has tied together many loose ends of Spooner.

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