Freedom Line Blog

Generally speaking and on a wide array of pressing issues, Congressman Darrell Issa (R – California) has proven a reliable leader who maintains solid support among conservatives and libertarians.

The prospect of Rep. Issa leading the House Judiciary Committee’s Courts, Intellectual Property, and the Internet Subcommittee, however, has sparked significant opposition and pushback from intellectual property (IP) proponents.  And for sound reasons.

For example, in urging new House Judiciary Committee Chairman Jim Jordan (R – Ohio) not to select Rep. Issa for the role, IPWatchdog’s Paul Morinville lists a litany of concerns based upon Issa’s record:

Issa is the wrong person for the job and has demonstrated that since he joined Congress.  He has sponsored and cosponsored numerous bills that harm small entities for the benefit of Big Tech and Chinese Communist Party (CCP)-controlled multinational corporations.  He was one of the key drivers of the passage of the America Invents Act (AIA), which created the Patent Trial and Appeal Board (PTAB), the entity that now invalidates 84% of the patents it fully adjudicates.  He has ignored other problems like eBay v. MercExchange, which highly restricted injunctive relief, and Alice V. CLS Bank, which unleashed a demon into the patent system called the ‘abstract idea.’  This trifecta of damage has radically reduced the funding of startups by devaluing the only asset capable of attracting investment: patents.

More broadly and equally troublingly, Rep. Issa conceptualizes IP and Congress’s role in protecting it in an agnostic and passive way, as reconfirmed recently by spokesman Jonathan Wilcox:

As long as there have been patents, there have been disputes about how to regulate them.  Congressman Issa believes from decades of experience the system has too many loopholes that allow litigation and lawsuit abuse to stifle innovation.  Every IP reform he has achieved is to make the system more fair to everyone.

The fact that Rep. Issa views his potential chairmanship as an opportunity to increase government regulation illustrates precisely why the prospect of him leading this important subcommittee has generated such considerable and unified pushback from the IP community.  Patents are a constitutional and natural right, not a platform for increasing government control.

Moreover, centuries of American experience and success tell a different story than he suggests.

Throughout our history, America’s system of strong IP protections has made us the most innovative, prosperous nation in human history, without any close competitor.  From Alexander Graham Bell to Thomas Edison to the Wright brothers, from the film industry to the music industry, from lifesaving pharmaceuticals to software, from the telephone to the television, no society parallels our astonishing record of innovation, influence and prosperity.

That occurred by design, not coincidence.

Namely, our Founding Fathers considered IP a natural right and specifically drafted the Constitution to protect IP in a robust manner.  Even before they drafted and ratified the Bill of Rights, they specifically included IP protection in the text of the Constitution.  Article I, Section 8 provides that, “Congress shall have Power … 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.”

That obviously creates an active, affirmative Congressional duty, not some sort of passive or optional authority as suggested by advocates of weaker IP laws.

The Founders recognized that, as with every other type of property, protection of IP recognized individuals’ inherent right to the fruits of their own labor while also incentivizing productive activity.  As James Madison, the Father of the Constitution, emphasized, “The public good fully coincides in both cases with the claims of individuals.”

Similarly, former patent attorney Abraham Lincoln observed that, “The patent system added the fuel of interest to the fire of genius in the discovery and production of new and useful things.”

And as the Supreme Court confirmed a century after that, “encouragement of individual effort by personal gain is the best way to advance public welfare through the talents of authors and inventors,” while “sacrificial days devoted to such creative activities deserve rewards commensurate with the services rendered.”

Accordingly, America’s strong historical protection of IP rights reflects both the importance of economic incentives – the utilitarian angle – as well as the recognition that free people possess a natural right to the fruits of their labor and investment.

Today, the total estimated value of American IP measures approximately $6.6 trillion, which standing alone exceeds the economies of every other nation in the world.  Our IP industries also account for 52% of all U.S. exports, and employ nearly 50 million workers whose average annual earnings exceed non-IP workers’ wages by nearly 30%.

Both at home and abroad, however, our unparalleled system of strong IP rights remains under deliberate assault.

Overseas, nations with weaker IP laws seek to pressure the U.S. to surrender IP protections, such as with our world-leading Covid vaccines and treatments.

And here in the U.S., skeptics and special interests who seek to weaken IP rights claim that the Constitution’s IP protections are utilitarian in nature, as opposed to natural rights.

The obvious flaw in that claim is that utilitarianism obtained more widespread popular currency decades after the Founding Fathers drafted the Declaration of Independence and Constitution.  They were steeped not in cold utilitarianism, but rather the natural rights theories of John Locke, who observed that, “a person rightly claims ownership in her works to the extent that her labor resulted in their existence.”

Even accepting for the sake of argument, however, that America’s IP protections arose from solely utilitarian rather than natural rights ideals among the Founders, the simple fact is that one cannot identify an alternative IP system in the world today, or throughout human history, that has resulted in greater utility than our own.

That’s why IP matters, and why we must maintain and strengthen America’s system of IP protection, not undermine it.

It’s therefore important that new House Judiciary Committee Chairman Jim Jordan take this to heart in determining who will lead the critical House subcommittee on Courts, Intellectual Property, and the Internet.

On February 13, the House Judiciary and Energy & Commerce Committees will hold an important joint hearing on the proposed T-Mobile/Sprint merger that promises greater innovation, more jobs, more private telecommunications investment, increased market competition, faster wireless and greater choice for consumers as America proceeds toward our much-anticipated 5G technological rollout.

Energy & Commerce Committee Chairman Frank Pallone, Jr. (D – New Jersey), Judiciary Committee Chairman Jerrold Nadler (D – New York), Communications & Technology Subcommittee Chairman Mike Doyle (D – Pennsylvania) and Antitrust, Commercial & Administrative Law Subcommittee Chairman David Cicilline (D – Rhode Island) state in their joint announcement that, “We look forward to examining this merger from the perspective of what is in the best interest of consumers and hardworking people.”

Well, the answer to that question is clear.

Compared to the current telecommunications marketplace, the T-Mobile/Sprint merger will mean an enhanced array of consumer services.  Sprint and T-Mobile currently possess differing but symbiotic assets, rather than overlapping ones that might otherwise simply mean a bigger company instead of two smaller (and less competitive) ones.  As a result, the new entity would create a new network with broader nationwide coverage, capacity improvements and improved wireless performance for customers compared to what American consumers currently enjoy.  As has been exhaustively demonstrated by CFIF and others, the proposed merger also promises lower costs for consumers, new jobs and necessary network upgrades.

In particular, the proposed merger offers significant potential benefits through deployment of the first 5G wireless network in the U.S., as CFIF has noted:

With an anticipated $40 billion investment in 5G, consumers will enjoy data delivery at a lower cost, and the incentive for competitors to similarly lower prices to consumers.  That will also prompt market competition to expand spectrum in rural areas in addition to urban centers, as well as capacity improvements for consumers.           

That’s how market competition works.  A T-Mobile/Sprint merger and its 5G deployment would also mean billions in new private infrastructure investment and countless new jobs.  In contrast, the absence of a T-Mobile/Sprint merger would mean slower deployment of a 5G nationwide network, and the absence of a market competitor of greater scale.  Ultimately that means consumers would lose.

There is simply no point in needless delay or contentiousness when the House Judiciary and Energy & Commerce Committees convene on February 13.  The proposed Sprint/T-Mobile merger offers only benefits to American consumers compared to the existing status quo.  The Committees must recognize that reality, lest we pay an unnecessary price in terms of slower 5G, fewer consumer choices, fewer jobs, less investment and less market competition.

Who else but quixotic Senator Lindsey Graham (R-SC) would use the following justification?

Sen. Lindsey Graham, R-S.C., broke with his party to cast the sole GOP “yes” vote on President Obama’s nominee to succeed retiring Justice John Paul Stevens. The vote was 13-6.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.”

Is it wise to support someone you fundamentally disagree with, and who you think will misinterpret the Constitution?  Is it honorable to vote one way in committee, and then flip-flop when the vote is before the full Senate?

And make no mistake; Graham did this because he’s trying to curry favor with the Obama Administration on another deal.  Already President Barack is using the fig leaf of Graham’s lone Republican “Aye” vote to claim Supreme Court nominee Elena Kagan has “bipartisan” support.

Though Graham won’t be up for reelection until 2014, Chris Cilizza is already speculating on possible primary opponents.

Well, not actually.  But reading this list of queries makes one pine for a Senator Will on the Judiciary Committee when its members meet on Monday to begin Supreme Court nominee Elena Kagan’s confirmation process.

Here’s a sampling:

• In Federalist 45, James Madison said: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.”

What did the Father of the Constitution not understand about the Constitution? Are you a Madisonian? Does the doctrine of enumerated powers impose any limits on the federal government? Can you cite some things that, because of that doctrine, the federal government has no constitutional power to do?

• Is it constitutional for Arizona to devote state resources to enforcing federal immigration laws?

• Is there anything novel about the Arizona law empowering police officers to act on a “reasonable suspicion” that someone encountered in the performance of the officers’ duties might be in the country illegally?

• The Fifth Amendment mandates “just compensation” when government uses its eminent domain power to take private property for “public use.” In its 2005 Kelo decision, the court said government can seize property for the “public use” of transferring it to wealthier private interests who will pay more taxes. Do you agree?

• Should proper respect for precedent prevent the court from reversing Kelo? If so, was the court wrong to undo Plessy v. Ferguson’s 1896 ruling that segregating the races with “separate but equal” facilities is constitutional?