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. These forms have received less critical attention lately and are beyond the scope of this commentary. Finally, the natural rights case for IP was recognized by Abraham Lincoln, and IP rights continued to be highly respected during Reconstruction. 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. Utilitarian's are in support of an act that is most capable . But the paring back of patent rights spurred by a fashionable bad patents philosophy does more than threaten to have significant negative side effects: It flies in the face of a large and growing economic literature that highlights the economic benefits of patents. The old saying, Let justice be done, though the heavens fall, is an instance of the contempt that retributive justice has for utilitarian considerations. [40] See generally Tom W. Bell, Intellectual Privilege (2014), http://mercatus.org/intellectualprivilege/Intellectual-Privilege.html#.VmXIyLgrK70. A Fairness Justification of Utilitarianism. Rather, it is that the deliberate murder is the greater evil, and therefore deserving of the greater punishment. [42] Uruguay Round Agreement: TRIPS (Trade-Related Aspects of Intellectual Property Rights), World Trade Organization, https://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm. I once had a job working with five convicted felons, and with a woman whose son had been charged with aggravated assault. 281 (1970) (arguing against expansion of the scope and duration of copyright). For example, he appointed the first full-time superintendent to oversee patent applications and signed the Copyright Act of 1802, which extended copyright protection to maps, charts, engravings, etchings, and prints. 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. The burglar used to become agitated every time he was due to see his probation officer, for fear he would end up having to serve his full sentence. 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. (See Given these problems, I wanted to see if Benthams utility calculus could provide a beneficial alternative to current policies for drug sentencing in the United States. 6. There is an increasing awareness of the need to save man's environment for current and future generations, both on the part of governments and of the populace generally. I believe that the utilitarian perspective of looking at a situation holistically with the goal of creating happiness could have an overall positive effect on the United States criminal justice system, despite the problems associated specifically with the utility calculus. Examples of Utilitarian Ethics. When we put. I was not assured. Once the practice of torture is revealed and believed by citizens, cynicism and mistrust of the state emerges, and only years of official integrity can begin to restore citizens' trust in the state. 3. Second, utilitarians believe that the good is additive. 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. Criticism has not diminished its importance. The IP Clause of the U.S. Constitution empowers Congress [t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. There is little direct evidence bearing on the Clauses original meaning: It was not a major structural innovation that sparked debate at the Constitutional Convention, and it did not have great historical significance (unlike, for example, habeas corpus).[4]. [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. (This content is not subject to review by Daily Kos staff prior to publication. At the University of New Hampshire (UNH) she is working toward a bachelor of arts degree, with a double major in political science and philosophy and a minor in classics. Introduction: Utilitarian Social Philosophy. [33] Abraham Lincoln, Lecture on Discoveries and Inventions (1858, 1859) (emphasis in the original), http://www.abrahamlincolnonline.org/lincoln/speeches/discoveries.htm. I also hope that by contemplating my conclusion, readers will have an increased investment in understanding the methodology of punishment and how this methodology could be improved and clarified in the United States. The details of the scope of copyright law, its long and tortured legislative development, and litigation surrounding it are beyond the scope of this presentation. [26] Particularly noteworthy are statements by the two greatest legal treatise writers of the period, Chancellor James Kent and Justice Joseph Story, who viewed both patents and copyrights as property acquired by individuals through their labor. "useRatesEcommerce": false, Utilitarianism has important implications for how we should behave toward nonhuman animals, which to a large extent can coincide with those of other theories. Three professors from Harvard Business School and New York University recently reported empirical research, based on extensive Patent Office data, supporting the proposition that patenting stimulates innovation and job growth by startup companies: Noted patent law professor Jay Kesan has summarized the latest economic thinking on the benefits of the patent system in a recent article: Public officials, courts, and commentators who question the value of strong patents have failed to address this compelling research adequately. The utility calculus is a series of questions (see Appendix) that are circumstantial and subjective. art. 3, at 45. 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. Piper says her lifelong goal is to try to help those who have been left behind by society and governments. When she first learned about utilitarianism in a social and political philosophy class taught by Nick Smith, her interest was piqued and she decided to pursue independent research on the subject. Views about IP expressed by the courts during the early American Republic are in accord with the Founders high regard for IP as seen through the lens of natural rights. 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. This article provides an excellent overview of the recent research that delineates the various sorts of economic efficiencies that are promoted by the patent system. Citizens begin to fear that they, too, may cross the line into the "other," whom the state targets as a threat. When we put someone in prison, his ability to injure society with further criminal activity is limited. [20] Moreover, ambiguity surrounds Jeffersons views on IP and on property in general. Google Scholar. for this article. J.J.C. [1] Robust federal protection for IP is not just important to Americas economic future, but also consistent with constitutional originalism and the early U.S. historical understanding of the nature and role of IP. 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. Instead, multiple ideologies create inconsistency between the actions and stances the US criminal justice system takes. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run. Utilitarianism holds that the most ethical choice is the one that will produce the greatest good for the greatest number. Epicurus, for instance, promotes the idea of happiness as a goal of human action and draws a distinction between lower and higher pleasures. Ecological Justification- conservation of nature is based on the knowledge that a species, ecological community, ecosystem, or the Earth's biosphere provides specific function necessary to the persistence of . The US criminal justice system does not operate under a single clear ideology. [26] Randolph May & Seth Cooper, Reaffirming the Foundations of IP Rights: Copyright and Patent in the Antebellum Era, 9 Perspectives from FSF Scholars (2014), available at http://www.insideronline.org/reader.php?id=LKBj. [36] See generally Alden F. Abbott & John G. Malcolm, A Measured Approach to Patent Reform Legislation, Heritage Foundation Backgrounder No. One of the features of utilitarian theories of punishment is that it focuses on the community, not the individual. The first (or individual) justification for free speech is that the human individual has an inalienable right to express his or her thoughts and feelings, even if others disagree. The popular notion that U.S. IP rights, especially patents and copyrights, are special privileges that merit less protection than more traditional property rights, both on constitutionalist grounds and on pragmatic economic policy grounds, is deeply flawed. (23) In short, utilitarianism is consequentialist and welfarist. [23] Amy Landers, Understanding Patent Law, 2 LEXIS New Providence 1 (2012). Karl Popper has noted: "Only a minority of social institutions are consciously designed while the vast majority 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. Utilitarianism was radical in the sense that it is a theory that is aimed at defining one simple basis that can be applied when making any ethical decision. Utilitarianism is a theory of morality that advocates actions that foster happiness or pleasure and oppose actions that cause unhappiness or harm. (Sen, p. 1 page, 397 words. [51] See Intellectual Property and the U.S. Economy: Industries in Focus, U.S. Department of Commerce (Mar. Certainly, coherent and functional copyright and patent systems seem to presuppose a vibrant civil society under a duly constituted governing authority that must establish and enforce intellectual property systems, but civil law does not sever the connection between property rights and natural rights. Published online by Cambridge University Press: The utility of this power will scarcely be questioned. With that said, a more consistent ethical system should be put in place. Share sensitive information only on official, secure websites. 477 (1850). Economics emerged as a distinct, self-conscious science or discipline in the nineteenth century, and hence this development unfortunately coincided with the dominance of utilitarianism in philosophy. There is, however, no consensus on how to take these differences into account when evaluating policies. 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. [19] See May & Cooper, supra note 5, at 100. The effects of industrial activity on man's well-being was not unknown before this century. The practice of torture will arguably best be countered by confronting the subterranean utilitarian justifications of torture on their own terms; over the long term it does not work, but rather undermines the legitimacy of the state itself. This justification is based on the calculation that the benefits of the theft outweigh the losses caused by the theft. A .gov website belongs to an official government organization in the United States. Punishment for crimes are decided according to the impact they will have in our society. Render date: 2022-11-04T07:33:31.626Z } 19. 16. 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. Site content may be used for any purpose without explicit permission unless otherwise specified. This has resulted in a number of enactments, both national and international, which purport to protect the environment in a number of ways - by controlling, for instance, the release of pollutants into the atmosphere, the dumping of waste products in the sea, the killing of marine life, the export of endangered species and so on. Critics of copyright have argued that it involves special government grants of privileges that should not be deemed property and that it excessively limits third parties First Amendment rights of creative expression, thereby imposing major costs on the public. Because of its complexity and subjectivity, the utility calculus is impractical as a tool for every individual judicial case. 7. Labour . Federal legislation enacted in 2011 made it easier to challenge patents in post-grant administrative proceedings and arguably was responsible for a diminution in the value of U.S. patents and a substantial reduction in GDP. "useSa": true Moreover, these concepts are not peculiar to Western philosophy. v. CLS Bank Intl, 134 S. Ct. 2347 (2014) (claims regarding computer-implemented inventions, including systems, machines, processes, and items of manufacture, are not patent-eligible subject matter); Limelight Networks, Inc. v. Akamai Technologies, Inc., 134 S. Ct. 2111 (2014) (a defendant is not liable for inducing infringement of a patent when no one has directly infringed the patent); Octane Fitness LLC v. Icon Health & Fitness, Inc., 134 S. Ct. 1749 (2014) (making it easier for district court judges to find exceptional circumstances justifying the award of fees to the prevailing party); and Highmark Inc. v. Allcare Health Mgmt. Her research was completed as part of the Research Experience and Apprenticeship Program (REAP) through the Hamel Center for Undergraduate Research. Basler et al. At the end of the 20th century, torture thrives most in societies characterized by gross inequalities of power or where one ethnic or religious community seeks to repress, through force, the interests of another. [12] The fact that a special constitutional provision, the IP Clause, generally defines the ambits of protected IP does not detract from that conclusion. to. She is enrolled in the University Honors Program and pursuing Honors in Major in political science and philosophy. After hearing about Benthams theories of government in a Social and Political Philosophy class taught by Professor Nick Smith, I began contemplating how utilitarianism and the utility calculus could be implemented into governmental systems. All of them were on probation. When we apply this basic moral philosophy into the case of punishment, the utilitarian justification fails to respect human dignity. 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'. For an interesting discussion on the various social forces in operation in relation to environmental issues see 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. 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. The Obama Administration has appointed officials to senior policy positions whose views gibe with the problematic patents trope. I, 8, cl. Trade Commn, Antitrust Guidelines for the Licensing of Intellectual Property (1995), http://www.justice.gov/atr/public/guidelines/0558.htm. [66] The Supreme Court has deferred to Congresss views of its own powers under the Patent and Copyright Clause, thereby leaving standing broad grants of copyright protection, although it has noted that copyright legislation might burden speech so heavily as to violate the First Amendment. More specifically, the only effects of actions that are relevant are the good and bad results that they produce. That Principle Which Approves or Disapproves of Every Action Whatsoever According to the Tendency Which It Appears to Have to Augment or Diminish the Happiness of the Party Whose Interest Is in Question or What Is the Same Thing in Other Words to Promote or to Oppose That Happiness Deterrence Rehabilitation Remove Advertising Open Split View hasContentIssue true, Copyright Society of Legal Scholars 1992. To a person (considered by himself) the value of a pleasure or pain (considered by itself) will be greater or less according to: These are the circumstances that are to be considered when estimating a pleasure or a pain considered by itself. Shapiro and Lemley stressed that the scope and validity of patent rights (most of which are not litigated) are uncertain; that patents are merely contingent property rights; and that weak patents can command unjustified premiums.
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