In general, the Antebellum period was a time of strong respect for IP rights rooted in the natural rights tradition. Yahweh ordered the Heebrews to raid the residents of Canaan. In this case, the relevant clause actually presents a simple argument, and is worth quoting in full: "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 . [48] See Joshua D. Wright, Commissioner, Fed. A deliberate murder is one that is planned and thought out well in advance, before being carried out; as when a man gets tired of waiting for his mother to die in order to inherit her money, and decides to shoot her while she sleeps, hoping to make it look like a burglary. ), An Introduction to the Principles of Morals and Legislation. Representative James Madison played a leadership role and Noah Webster was active behind the scenes in promoting copyright. The first hypothesis states that each person's utility or well-being depends on his or her income, but that this relation is governed by the diminished rate principle. [6] In particular, Lockes essay Of Property, the fifth chapter of the Second Treatise, offers a justification for the acquisition and enjoyment of private property. The word utility is used to mean general well-being or happiness, and Mill's view is that utility is the consequence of a good action. It is a continuous process integral to understanding human life as advanced by Utilitarianism, where humans are continuously pursuing happiness, 33 under the influence 'of two sovereign masters, pain and pleasure'. Utilitarianism. Philosophers have argued over exactly how the resulting good and evil may be identified and to whom the greatest good should belong. Education typically causes minimal pain and has the possibility of creating an extreme amount of long-term happiness if convicts learn to change their behavior. its chance of not being followed by sensations of the opposite kind (pleasure by pain, pain by pleasure). To compensate for this complexity, I kept an overarching utilitarian goal in mind: maximizing happiness. [19] See May & Cooper, supra note 5, at 100. For instance, a reasonable utilitarian sentencing guideline for drug dealers could include a large fine to cover the rehabilitation costs of those to whom they sold drugs; however, it would be unreasonable and unethical to expect the single mother in poverty to pay this large fine when she was coerced into selling drugs. Close this message to accept cookies or find out how to manage your cookie settings. art. 2011), https://www.ftc.gov/sites/default/files/documents/reports/evolving-ip-marketplace-aligning-patent-notice-and-remedies-competition-report-federal-trade/110307patentreport.pdf. The ethic and reward theory promotes the ethical and moral aspect of intellectual property rights. Google Scholar.). Criticism has not diminished its importance. What objections can be raised against this approach? The fine would also be designed to cover the costs associated with the arrest and punishment of the convict to alleviate this financial burden on taxpayers. The most important thing is that the action taken to achieve a certain outcome has to be of the greater benefit of the society at large. utilitarianism, in normative ethics, a tradition stemming from the late 18th- and 19th-century english philosophers and economists jeremy bentham and john stuart mill according to which an action (or type of action) is right if it tends to promote happiness or pleasure and wrong if it tends to produce unhappiness or painnot just for the The utility calculus is a series of questions (see Appendix) that are circumstantial and subjective. We dont know what the trouble is Maam, she said, but if it happens again, youre going to have to get in the middle of the room and squat. The result was that she and her husband applied to transfer their probation office to another county. For this reason, statistics measuring such things as recidivism or the incidence of certain crimes are useful in assessing the effectiveness of different kinds of punishment. [20] Moreover, ambiguity surrounds Jeffersons views on IP and on property in general. [32] Abraham Lincoln, Speech at Chicago, Illinois, in 2 Collected Works of Abraham Lincoln 493 (R.P. Kieff and James Daily have critiqued recent U.S. Supreme Court decisions narrowing the scope of patentable subject matter, arguing that these changes have undermined the goals of invention commercialization and competition. For an interesting debate on utilitarianism see Alden Abbott served as Deputy Director of Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. I included a fine in my hypothetical sentencing guideline to serve as a deterrent to engaging in substance abuse, both to prevent the offender from engaging in substance abuse in the future and to serve as a threat to prevent the general public from engaging in such criminal behavior. Government officials need to keep that in mind when setting public policy. Smith has mentored many undergraduate researchers at UNH and considers it one of the genuine highlights of teaching at UNH. Dr. Smith first met Piper when she was a junior high school student attending the Future Leaders Institutea summer philosophy camp he directed with classics professor Scott Smith. 5. Such reduced returns have diminished incentives for the expanded production of copyright products, many of which rely on costly advertising, promotional, and related expenditures to achieve scale and widespread distribution. See I know that the knowledge I gained through REAP will contribute to my own understanding of these complexities in the political world, allowing me to bring a well-rounded understanding of utilitarianism to my studies as I pursue a double major in philosophy and political science. They are really only properties of the act or other event by which such pleasure or pain has been produced; so they are only to be taken into the account of the tendency of that act or event. 23. The next step in my research was to formulate hypothetical utilitarian sentencing guidelines for the category of crime I wanted to focus on: drug crimes. art. When we put someone in prison, his ability to injure society with further criminal activity is limited. Better put, the justification of character, and whether an action is good or not, is based on how the . New Media Rights (2015), http://www.newmediarights.org/business_models/artist/what_are_major_criticisms_copyright_laws_us; Stephen Breyer, The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs, 84 Harvard L. Rev. No property rights system is perfect, and concerns about defective or uncertain rights affect real and personal property as well. For utilitarians, stealing in itself is neither bad nor good; what makes it bad or good is the consequences it produces. Utilitarianism was a progressive doctrine historically, principally because of its universal scope its insistence that everyone's happiness mattersand its egalitarian conception of impartiality its insistence that everyone's happiness matters equally. See The Heritage Guide to the Constitution, supra note 4, at 152153. The ultimate utilitarian objection to torture is that it corrosively delegitimizes the state. } Zoukis, Christopher. Peter Singer & Katarzyna de Lazari-Radek (2017). Secure .gov websites use HTTPS Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. 43 (James Madison), available at http://press-pubs.uchicago.edu/founders/documents/a1_8_8s7.html. The Supreme Court has constrained the scope of patent protection in recent decisions; Some economists have decried the quality of patents that are issued, suggesting that additional devaluation of patents might be appropriate; Federal enforcement agencies have begun to use antitrust law in an attempt to limit returns to patents that cover key standardized technologies; Various copyright critics have denigrated statutory copyright protection as a form of economically wasteful special privilege that should be curbed or even eliminated. Intellectual property and physical property both share this necessary connection to the laws of society, and both copyrights and patents fit within the meaning of property in this narrower sense of the term. This punishment is supported by utilitarianism because the happiness of the taxpayers would increase in proportion to the decrease of their taxes. Its just county, he assured me. Differences in preferences are important to explain variation in individuals' behavior. [12] The fact that a special constitutional provision, the IP Clause, generally defines the ambits of protected IP does not detract from that conclusion. [52] The empirical and law and economics research summarized below is discussed and cited in Abbott, supra note 39, at 810. An intentional murder is one that is done impulsively, in the heat of the moment; as when a man gets into a fight in a bar, and becomes so angry that he hits someone over the head with a chair and kills him. (1972) ch CVII, para 4, pp 282283 Their continued love and support serves as my north star throughout every endeavor I undertake in life. At this point, I cannot resist a parenthetical aside. An official website of the United States government, Department of Justice. [39] See generally Alden F. Abbott, Abuse of Dominance by Patentees: A Pro-Innovation Perspective, Antitrust Source 1 (Oct. 2014), http://www.americanbar.org/content/dam/aba/publishing/antitrust_source/oct14_abbott_10_21f.authcheckdam.pdf. The effects of industrial activity on man's well-being was not unknown before this century. This means that punishments, mainly prison terms, are allotted because the individual is deemed to deserve punishment, not necessarily because society or the individual will benefit from the punishment. On the other hand, those who believe in free will tend to disregard utilitarian considerations, and lean more heavily on the retributive principle instead, since they believe that with free will, one can rise above such things as heredity and environment. Content may require purchase if you do not have access. In the first case, we allow sentiment to prevail over reason, and let the criminal off easy. to. One example of utilitarianism in business is the practice of having tiered pricing for a product or service to different types of customers. Utilitarianism, however, will say what Peter has done is morally right. In particular, work by Professors Carl Shapiro and Mark Lemley on probabilistic patents made a public policy case for weakening patent protection. 8 (The Congress shall have PowerTo 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.). When the criminal is punished, other people may learn that crime does not pay from his example. Nick Smith, my research mentor and adviser, helped me narrow my research goal: to determine if the philosophy of utilitarianism, and specifically the utility calculus, could have a positive effect on drug sentencing in the United States criminal justice system. In this sense, utilitarian ethics remains to be an appealing area where discourses on the environment shall thrive. It did not always work. Feature Flags: { The Constitutionalist and Utilitarian Justifications for Strong U.S. Patent and Copyright Systems, The Constitutional Foundations of Intellectual Property, U.S. Congress Office of Technology Assessment, Intellectual Property Rights in an Age of Electronics and Information. This implementation would be drafted by legislators aiming to include the utilitarian value of creating happiness when possible as a comprehensive goal for the US criminal justice system, similar to how many Scandinavian countries have the goal of humane treatment and reintegration into society (Zoukis 2017). A U.S. patent is a statutorily defined property right granted by the U.S. Patent and Trademark Office for a term of 20 years from the date of application. I was not assured. Thomas Jefferson clearly cannot be cited as an example of Founding-era denigration of or distrust for IP rights. It is the only moral framework that can be used to justify military force or war. Utilitarianism is the moral theory that holds that the rightness or wrongness of an action is determined by the balance of good over evil that is produced by that action. [27] Joseph Story, A Familiar Exposition of the Constitution of the United States 118 (1842). Utilitarians are consequentialists, always forward-looking, insisting that an action or a practice is justified only if its future benefits outweigh its future cost. Utilitarianism is an ethical theory that determines right from wrong by focusing on outcomes. In a utilitarian perspective, criminals are punished because they are morally responsible beings. To learn from ones mistakes is good; to learn from the mistakes of others is better. Admittedly, the fact that IP rights have solid constitutional backing does not address the question of how Congress should deal with them today. May & Seth L. Cooper, The Constitutional Foundations of Intellectual Property (2015). The happiness of the many outweighs the happiness of the individual. In a criminal law perspective, punishment is regarded as a form of retaliation for the actions of the criminal. Utility, in turn, can be specified in accordance with one's preferred utilitarian theory (e.g., hedonistic utilitarianism, preference utilitarianism, and so on). This positive relationship may reflect the fact that by offering a period of market exclusivity, strengthening patents raises incentives to invent in innovative fields characterized by high research and development outlays and delays in coming to market. 43 acknowledges that protection of IP rights by legislative action fits squarely within the classical liberal framework of government securing individual property rights under the rule of law. Copyrights. Because of the influence that utilitarianism and drug-related problems have on the political and philosophical world, I hope that my research will help both fields address some of the complex issues the world is facing. In addition, Jefferson wrote in his 1807 letter to Oliver Evans that [c]ertainly an inventor ought to be allowed a right to the benefit of his invention for a certain time, and [n]obody wishes more than I do that ingenuity should achieve a liberal encouragement[23] These are hardly the statements of someone opposed to IP rights. [55] Jay P. Kesan, Economic Rationales for the Patent System in Current Context, 22 Geo. Much additional empirical research by independent scholars supports a strong association between patents and faster economic growth and innovation. It is utilitarian because the prospect of being publicly denounced serves as a deterrent. To the contrary, innovation-induced welfare gains in copyright-supported sectors have soared at the very time that copyright has been under attack for expanding in scope.[63]. Even worse, an attenuation of American copyright not only would prove harmful to the U.S. creative community in the domestic market, but also would undermine efforts to ensure a reasonable international copyright regime. [36] See generally Alden F. Abbott & John G. Malcolm, A Measured Approach to Patent Reform Legislation, Heritage Foundation Backgrounder No. [25] Gayler v. Wilder, 51 U.S. (10 How.) As Bentham himself acknowledged, an accompanying set of sentencing guidelines, similar to modern mandatory minimums, must be used when applying utilitarianism to government policies (Burton 1843). Google Scholar, ch XVII, paras 2 & pp 282-283. Official websites use .gov However, Kant has raised some objections to the utilitarian justification of punishment due to two main reasons. Implicit in this analysis was the premise that the current patent system unnecessarily restricts competition and imposes excessive costs on society. In general, May and Cooper conclude that: In sum, ample evidence supports the proposition that IP rights, embodied in the Constitutions IP Clause, were understood by the Framers of the Constitution as natural rights worthy of strong protection. The third is deterrence. Daily Kos moves in solidarity with the Black community. Burton, John Hill. 32, no. Published online by Cambridge University Press: 43 comports with a natural rights understanding of IP rights. Copyright Office. Nevertheless, a very one-sided, negative view of patents and the patent system has come to dominate U.S. public policy to such an extent that the economic benefits of the system, not to mention the rights of patentees, have been largely obscured. Such a weakening would make it harder for U.S. officials to argue credibly for reasonable copyright protection overseas and would discourage efforts to root out piracy around the world. At least as far as society on the outside is concerned, the criminal cannot offend while locked up, and that is a good thing. Mill, John Stuart, Utilitarianism in collection edited by Warnock, Mary (1989) London: Fontana, p 257 Thus it is that in Texas, capital punishment has to be justified on both utilitarian and retributive grounds. Therefore, they argued that antitrust, patent grant, and patent litigation policy should be reoriented to reduce patent grants (with a focus on higher quality) and subject patents to greater legal restrictions, including easier limitation and invalidation. Kos Media, LLC. This judgment was made according to the principle of utility, where an action provides greater happiness and benefit for society than if the action was not taken.773 Utilitarian justifications are often (6) its purity, i.e. The promotion of utility (Bentham 1789) or happiness in society at large is the logic underpinning this theory. 19. its chance of being followed by sensations of the same kind (pleasure by pleasure, pain by pain), and. ) or https:// means youve safely connected to the .gov website. [43] Concluding that rights granted to patent holders are highly uncertain (and nearly half of patents litigated to final judgment are invalidated) and represent only a legal right to exclude, Shapiro and Lemley argued for a fundamental rethinking of patent policy in four areas: the system for granting patents, the patent litigation system, the incentives of patent holders to use cross licenses or licenses to settle patent disputes rather than fully litigating them, and the antitrust assessment of agreements among rivals to settle actual or threatened patent litigation. I began contemplating whether the utilitarian goal to create happiness could provide a solution to problems such as high recidivism rates, a retributionist theme, and a lack of consideration for convicts futures. Explain the utilitarian justification for IP as an incentive for intellectual work. So, when they both point in the same direction, we are confident that we are doing the right thing; when they point in different directions, we find we are filled with doubt. J.J.C. The report asserts that John Locke, for example, was one of the most influential philosophers on the Framers of the U.S. Constitution. It then points to various sources backing this claim. Even in more simplistic cases, such as one in which no coercion is involved but a family relies upon the mothers income, giving the mother a large fine would unjustly affect her dependents. . [41] Those guidelines, reflecting substantial economic input, emphasized that all forms of IP were to be treated like other types of property. Supporters of robust IP rights can therefore claim the force of history and constitutional political philosophy, while critics fail in their claims that IP rights are special privileges that should be deemed second-class property rights (if they qualify as rights at all). The fact that IP rights are defined through a specific constitutional provision and positive statutory law does not make them any less worthy of protection than more traditional forms of tangible property are. Various arguments exist questioning if an abortion is morally justifiable. An examination of the patent and copyright systems reveals that such critiques are both badly misplaced and counterproductive. This breaks down into three parts: The first is incapacitation. Utilitarian ethics originated with the idea of making good use of time and resources in medical care, without taking public benefit into consideration. One of the features of utilitarian theories of punishment is that it focuses on the community, not the individual. 16. [43] See generally Mark A. Lemley & Carl Shapiro, Probabilistic Patents, 19 J. Econ Persp. Mercy may be thought of as acting in opposition to justice, or it may be thought of as a more careful application of justice. Bentham seems to be stating here that moral statements can be derived from descriptive statements - that is, an ought can be derived from an is. Civil laws apply in unique ways to different types of property. Other statutes that generally enhanced patent rights were passed in 1832, 1837, 1839, 1842, 1848, 1849, 1851, and 1861. Explain the Lockean "labor/desert" approach to justifying IP. The broad-based international acceptance of copyright protection. utilitarian justification Essay Examples. Utilitarian Justification. Although these problems may be more serious with regard to patent rights, they should not be used to undermine a system that is of key importance to American economic vitality. Explain Moore's distinction between "thin" and "thick" consent. In this respect, Antebellum-era thinking marked the continuation of a consistent line of thought about the basic nature of intellectual property rights in the American constitutional order.[30]. This becomes complicated in cases such as incarceration where, because of issues related to reintegrating into society with a criminal record, the pain that results from punishment lasts longer than the duration of the prison sentence. [2] The following discussion of IP also focuses on patents and copyrights. 281 (1970) (arguing against expansion of the scope and duration of copyright). The criminal facing the death penalty may learn that crime does not pay, but it is a lesson learned too late. Words. 29, 1792, available at http://www.heritage.org/initiatives/first-principles/primary-sources/madison-on-property. It is important to understand utilitarianism as it forms the basic tenants of legal theory and function of laws. On the other hand, if a man commits a deliberate, cold-blooded murder, retributive justice demands that he be put to death, for only then will the killer get what he deserves. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. Despite the extenuating circumstances of the case, a judge in a utilitarian system would have little choice but to issue the standard sentence recommended by the utility calculus. . So, if the criminal shows remorse, and it was his first offense, and he just fell in with evil companions, then we opt for a lighter sentence, and that is as it should be. The right to use ones faculties to acquire property is a personal right, and the right to the actual productions of ones labor is a property right in the narrow understanding of the term. Utilitarian's are in support of an act that is most capable . [1] See, e.g., N. Stephan Kinsella, Against Intellectual Property (2008), file:///C:/Users/abbotta/Downloads/Against%20Intellectual%20Property_2%20(1).pdf. This means that the less one's income is, the more utility he or she will get from a . (Log in options will check for institutional or personal access. Second, after undergoing governmental education programs on the harmful repercussions of consuming illicit drugs, the offender would be less likely to engage in substance abuse in the future. Even if torture leads to the absence of pleasure and presence of pain the discomfort is justifiable. The long-standing efforts of the U.S. government to push for strong foreign copyright enforcement and robust copyright protection in international trade negotiations. Furthermore, increases in the U.S. statutory copyright term since 1790 have not really expanded the scope of copyright protection; rather, they have reapplied the Framers approaches to calculating copyright term while adjusting for changes in average adult life spans and international norms. [14] See id. When the utilitarian and retributive principles lead us to the same conclusion, that is a most felicitous circumstance; for the fact is that no one can be absolutely certain as to what punishment will be most beneficial to society, and even if we believe in free will, it is hard to say sometimes just what a person deserves. Professor Scott Kieff has argued that a patent system that affords strong protection for the right to exclude others yields greater efforts by innovators to exploit new technologies and is more effective at spurring the intensive use of new technologies, government grants, tax credits, or other regulatory vehicles to encourage innovation. The right to useful inventions seems with . 3035 (July 14, 2015) (concluding that [p]recipitous, unreflective action on legislation is unwarranted, and caution should be the byword, especially since the effects of 2011 legislative changes and recent Supreme Court decisions have not yet been fully absorbed). Mason L. Rev 897, 92324 (2015). 1, 2000. The Obama Administration has appointed officials to senior policy positions whose views gibe with the problematic patents trope.
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