Thursday, November 17, 2005

Fallacy of Self-Exclusion

For several years now, Research In Motion (makers of the blackberry) and NTP have been embroiled in an intellectual property dispute wherein NTP claims that RIM is infringing some of its patents. As part of the dispute NTP was granted an injunction against RIM which would prevent RIM from operating in the US unless it first licensed the technology in question from NTP. However, the injunction was immediately stayed while the court considered certain other matters in the case -- so as of yet no interruption to service has occurred.

Recent developments suggest that the injunction may soon be enforced, which might shutdown the RIM network. I have no opinion on the facts or merits of the claims – I leave that to the justice system, but I do want to comment on a recent filing in the case which I find quite disconcerting.

Turns out that the Justice Department has filed a “statement of interest” which recommends that the injunction shouldn’t be enforced because doing so will harm the federal government, including the Justice Department itself. In other words, the needs of the government should trump the property rights of those who made fulfilling those needs possible in the first place.

[As an aside, it has often been reported that the blackberry is a fixture of the DC night-life, but let’s dismiss the notion that what the Justice Department is here defending is the “need” for horny young lawyers to get laid; and instead assume that there is some legitimate need that can’t be replaced by cell phones, email, video conferencing, paging, etc. (What that could be is beyond me, but let’s grant it for argument’s sake)].

If the Justice Department, i.e. the very department charged with protecting US property rights around the world, sets the standard that such rights are valid only until someone needs the goods, then how do they ever hope to defend any property rights? Any IP of value is needed, that’s what makes it valuable! If it were unneeded, there would be no reason to defend it, since no one would have any reason to steal it. But by this precedent, no defense of intellectual property is possible, and we can kiss goodbye developments in all those fields which are principally intellectual (medicine, technology, etc.).

Now perhaps these government officials were counting on self-exclusion, i.e. they believe that rights and rules apply, unless the government is involved , in which case all bets are off. But such logic applies only in dictatorships (whether fascist or communist), not in a country founded on the very principle of individual rights.

It is terrifying indeed to think that we have now reached the stage where the very officials charged with defending the laws -- not only think that they are above them -- but are even prepared to come out in writing to say so!

DOJ files “statement of interest” 1 , 2 , 3
DOJ and IP


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