This past Wednesday, Rep. Thomas Massie (R-KY) joined Sen. Chris Coons (D-DE) on Google Hangouts for a discussion on their bipartisan opposition to the Innovation Act, the patent reform bill currently wending its way through Congress. The discussion was moderated by Gene Quinn, founder of the pro-patent troll website IPWatchdog, and also joined by Louis Foreman of Edison Nation, a front group for the biotech industry.
The irony that the event was taking place thanks to an invention by Google, one of the foremost supporters of patent reform, appeared to be lost on the panelists, as did the irony in naming a pro-patent organization for Thomas Edison, whose approach to intellectual property was… loose.
However, a few more direct lines of attack were anticipated by the panelists, particularly by Massie.
“I’m a patent Hobbit,” said Massie, likening his early career as an engineer and inventor to the unassuming protagonists of J.R.R. Tolkien’s The Hobbit and The Lord of the Rings. And perhaps Massie had literature on the brain, for he also tried to rebut one of the common arguments against how patents are used by trolls: namely, that they only cover ideas rather than anything tangible. Massie argued that this particular line of argument would be like expecting an author to bind his own books before they were copyrightable.
Both responses are cute. They’re also deeply wrongheaded and disingenuous.
Start with the second one. The argument that patents should cover actual inventions rather than simply the idea of them is nothing like suggesting that authors should print their own books. Rather, it’s an argument that just as a book can’t be copyrighted until it’s written, a device can’t be patented until it exists. As someone who makes his living from writing, I might be able to imagine a brilliant plot for a novel, but unless at least 50,000 words exist in a Word Processor someplace bringing that plot into being, I can’t complain if someone else comes up with the same plot and beats me to the punch. Massie, who has staked out otherwise reasonable positions on copyright, should know better than to argue something this transparently silly.
However, his “patent Hobbit” formulation is more interesting, because while Massie no doubt intends the reference to invoke the wholesomeness and harmlessness of Hobbits, he should have read Tolkien more closely. Hobbits, as depicted in The Lord of the Rings, are far from incorruptible by the temptations of the book’s central object, the Ring of Power. Indeed, one of the central characters in Tolkien’s work, the creature Gollum, is actually a Hobbit so thoroughly corrupted by the Ring’s influence that he can’t avoid lusting after it to the point of murdering people in order to get it.
And for all Massie’s homespun geekery, it would seem that the Ring of government power might be turning him into a Gollum-esque “patent Hobbit” where this issue is concerned. His alliance with the unabashed Leftist Coons would set off alarm bells on its own, but this discussion showed that Coons’ statism might be contagious.
You see, in an unguarded moment Coons put the real face on anti-patent reform legislation when he described patents as a “government granted monopoly” and argued that government needed to give people the right to “enforce those monopolies.”
In other words, per Coons, they’re a way for the government to pick winners and losers. Yet Massie, normally an unflappable advocate of the free market, was completely silent in the face of these statements. He made no attempt to qualify or moderate them in any way.
His silence is damning. While Massie likes to claim he’s only trying to live up to the views of the Founding Fathers, the fact is that the Founders understood that government granting monopolies, while a necessary evil, was still an evil that needed to be granted only to the extent that it encouraged the development of science and the useful arts. Needless to say, the current patent system, which enabled the infamously abusive pricing of Turing Pharmaceuticals (a practice which liberals have tried to dishonestly pin on the free market), and which enables the slaughter of small businesses by patent trolls, does neither.
Furthermore, the idea that property rights must mean the constitutional right to a monopoly is absolutely ludicrous. But don’t take my word for it — take Thomas Massie’s when he railed against the monopolistic practices of cell phone companies while sponsoring cell phone unlocking legislation:
This bill rolls back excessive and out-dated prohibitions on otherwise lawful innovations that promote marketplace competition.
Yes, excessive and out-dated policy strangling marketplace competition, one shudders at the thought. Where’s this Thomas Massie when you need him?
Unfortunately, it seems the answer may be obvious: Massie’s own history of making an impressive (and, one hastens to add, well-earned) haul from his own inventions most likely has blinded him to the idea that not everyone is as virtuous a user of patents as he was. Hence his fanatical desire to protect even the worst actors in the patent space by granting them monopolistic strength. Such a temptation — to hand over an evil and excessive power to seemingly virtuous people — also propelled the most virtuous Hobbit in Tolkien’s trilogy, to try to hand over the Ring of Power early on. It was only the refusal of those he offered it to that showed him the error of his ways.
Yet even Frodo Baggins finished the series corrupted by the Ring. And so Thomas Massie seems to have been corrupted by the temptations of government power. He should instead avoid the fate of Frodo and Gollum, and free small businesses and inventors from the legal siege of patent trolls sustained only by their monopolistic rings of power. As for Congress, no extensive and harrowing voyage to Mount Doom is necessary to slay the arch villians of progress. Passing the Innovation Act (and it’s compatriot, the PATENT Act) would be the quickest and most effective way to dispel the patent troll Saurons.
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