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. Driver, Julia. 7. Utilitarian Justification 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. Criticism has not diminished its importance. 29, 1792, available at http://www.heritage.org/initiatives/first-principles/primary-sources/madison-on-property. Explain the utilitarian justification for IP as an incentive for intellectual work. At least as far as society on the outside is concerned, the criminal cannot offend while locked up, and that is a good thing. As a utilitarian justification for capital punishment, the reform theory recommends the reform of society at large through the elimination of threatening individuals in the community. ) or https:// means youve safely connected to the .gov website. 1. At this point, I cannot resist a parenthetical aside. Official websites use .gov 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. That is to say, we can all agree that no one should be punished more than he deserves, no matter how useful it may be to society to do so. Consider how a utilitarian sentencing guideline for selling illegal drugs would punish a single mother in poverty who is coerced by gang members into selling drugs and is caught by law enforcement. (23) In short, utilitarianism is consequentialist and welfarist. Story, in his Familiar Exposition of the Constitution, wrote that it is a poor reward, to secure to authors and inventors, for a limited period, only, an exclusive title to that, which is, in the noblest sense, their own property.[27] With regard to the role of the IP Clause in promoting patents and copyrights, Story wrote that it is impossible to doubt its justice, or its policy, so far as it aims at their protection and encouragement.[28] Likewise, In his Commentaries on American Law, Kent praised the justice and the policy of securing to ingenious and learned men the profit of their discoveries and intellectual labor.[29]. I believe the result of the action should be the deciding factor in determining its justification. There is, however, no consensus on how to take these differences into account when evaluating policies. Explain the Lockean "labor/desert" approach to justifying IP. [24] The Supreme Court unanimously affirmed Justice Marshalls judgment in Evans v. Jordan, 13 U.S. (9 Cranch) 199 (1815). Despite this history, it is up to Congress to decide how much current protection to provide IP rights pursuant to the IP Clause. 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 For example, the airline industry offers first class, business class and economy class seats on many of their airplanes. Inc., 134 S. Ct. 1744 (2014) (making the determination of whether a case is exceptional to justify the award of fees a matter of trial court discretion). [35] See, e.g., Gene Quinn, Patent Reform at All Costs: Desperate Reformer Resorts to Lies, IPWatchdog (Feb. 9, 2016), http://www.ipwatchdog.com/2016/02/09/patent-reform-at-all-costs/id=65918/. 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. I once had a job working with five convicted felons, and with a woman whose son had been charged with aggravated assault. Legislative proposals directed at allegedly abusive patent assertions and costly lawsuits filed by patentees are being considered in Congress. [43] See generally Mark A. Lemley & Carl Shapiro, Probabilistic Patents, 19 J. Econ Persp. Utilitarian View on Abortion. [53] Daniel F. Spulber, How Patents Provide the Foundation of the Market for Inventions, 3 (June 2014) (citation omitted), http://www.law.northwestern.edu/research-faculty/searlecenter/events/roundtable/documents/Spulber_Patents_and_the_Market_for_Inventions.pdf (revised version published in 2015 in Journal of Competition Law and Economics, http://jcle.oxfordjournals.org/content/early/2015/03/19/joclec.nhv006 (abstract)). only in virtue of the well-being of the lives of particular individuals . Utility, in turn, can be specified in accordance with one's preferred utilitarian theory (e.g., hedonistic utilitarianism, preference utilitarianism, and so on). Copyright Office. The retributive justification for punishment is a priori, and thus is unaffected by statistics in particular, or experience in general. Therefore, the first kind of mercy violates the principle of retributive justice, whereas the second kind of mercy allows us to satisfy that principle by taking all the relevant facts into consideration. Even if torture leads to the absence of pleasure and presence of pain the discomfort is justifiable. Smart (1973). Utilitarian justification. Congress and Presidents, as well as the courts, strongly backed IP rights during the Antebellum era. Utilitarian Justification. Patents. Admittedly, the fact that IP rights have solid constitutional backing does not address the question of how Congress should deal with them today. 2005). [7] Locke viewed property as a broad referral to the exclusive rights that individuals hold in their own selves and their own labor. Oxford University Press. Utilitarian View On Abortion. utilitarian justification. The reason that the second condition is retributive rather than utilitarian is that there are no statistics showing that people who kill deliberately are more dangerous to society than those who kill intentionally. Inst. In order to enjoy a variety of protections under international agreements, copyrighted materials must be registered with the U.S. The happiness of the many outweighs the happiness of the individual. Another important justification is the utilitarian or consequentialist argument for intellectual property rights. The social philosophy of economists, therefore, whether the laissez-faire creed of the nineteenth . Corporate raids maximize pleasure for the whole economy. Stuart, John (7) its extent, i.e. to. [3] U.S. Const. For many people the value of a pleasure or a pain will be greater or less according to seven circumstancesthe six preceding ones and one other, namely. Over the past decade, Organisation for Economic Co-operation and Development studies have found a positive association between the strengthening of IP rights (including patents) and important economic indicators as well as a positive relationship between the strengthening of patent rights and increased innovation. [44] See To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, Fed. 21. The existence of a web of international copyright protection agreements to which the United States is party. The torturer's most potent threat to the captive and isolated subject may be that the torturer can do whatever he wills to the captive and there is no one to restrain him and no one to act as an advocate for the captive. Citizens begin to fear that they, too, may cross the line into the "other," whom the state targets as a threat. 3. 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. In the Interest of the Governed (1991) Oxford: Clarendon Press 2 Hardin 1988, Goodin 1995. In a recent book, Randolph May and Seth Cooper provide a clear summary explication of the Framers understanding that IP rights are a legitimate form of property that is entitled to protection by government much as traditional forms of tangible property are protected. 12. The criminal is taught that crime does not pay. Principles of Morals. Chapter 4:22-23. For example: In 2014, Professor Daniel Spulber produced a broad overview of three important ways in which patents support the market for inventions: (1) by increasing transaction efficiencies and stimulating competition; (2) by allowing owners to control how inventions are turned into innovations and guiding incentives for invention and innovation; and (3) by promoting the financing of invention and innovation.[53] These explanations go far beyond and are entirely separate from the traditional reward theory justification for patents, which viewed patent law as a vehicle that enables the inventor to capture rewards from an investment in an invention. Basically, there are two justifications for punishment: the utilitarian and the retributive. The promotion of utility (Bentham 1789) or happiness in society at large is the logic underpinning this theory. [55] Jay P. Kesan, Economic Rationales for the Patent System in Current Context, 22 Geo. This involved a longer trip, but since their new probation office did not catch on to their act, they did not have to give up their weed. The reason for their misery consisted mostly in the fact that they had to take periodic drug tests, and having to be clean for five years or so was more than they could stand. Lyons, David Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, edited by Burns, J. H. & Hart, H. L. A. The History of Utilitarianism.Stanford Encyclopedia of Philosophy, Stanford University, 22 Sept. 2014, plato.stanford.edu/entries/utilitarianism-history/. [2] U.S. Const. Professor Clarisa Long has explained that patenting serves the key role of lowering information costs to firms, allowing firms to signal their research and development capabilities and human capital to capital markets and promoting beneficial licensing. 10 (Memoirs Part I and Correspondence),1843. Its just county, he assured me. In the first case, we allow sentiment to prevail over reason, and let the criminal off easy. Site content may be used for any purpose without explicit permission unless otherwise specified. It grants the holder the right to exclude others from making, using, offering for sale, or selling the invention in the United States or importing the invention into the United States. The natural rights theory has been constructed on the basis of John Locke's idea. Google Scholar. 15. Far from being inefficient, monopolistic drags on economic efficiency as some critics have suggested, however, the patent and copyright systems are vital to innovation, wealth creation, and economic growth. Bentham, Jeremy, Principles of International Law in Bowring, John, Works of Jeremy Bentham. This situation ignores the complexities of the mothers case, causing both her and her children a significant amount of unnecessary pain. Google Scholar, ch XVII, paras 2 & pp 282-283. hasContentIssue true, Copyright Society of Legal Scholars 1992. Utilitarianism was not an entirely new philosophy introduced by Jeremy Bentham. Mill, John Stuart, Utilitarianism in collection edited by Warnock, Mary (1989) London: Fontana, p 257 [32] Abraham Lincoln, Speech at Chicago, Illinois, in 2 Collected Works of Abraham Lincoln 493 (R.P. Critical scrutiny has focused on the federal patent and copyright systems, which are authorized by the Patent and Copyright Clause (IP Clause) of the U.S. Content may require purchase if you do not have access. Utilitarian Justification. CrossRefGoogle Scholar for a fuller discussion of parochial happiness and universal happiness. 34 Equal treatment by the state means that individuals in similar comparable positions should receive similar comparable treatment. One type of punishment I considered was for people convicted of using a small amount of an illegal substance. Utilitarianism has important implications for how we should behave toward nonhuman animals, which to a large extent can coincide with those of other theories. The utilitarian justification for punishment appeals to what is best for society in general, and over the long run. In particular, the rapid proliferation in recent decades of for-profit digital goods, including software, DVDs, E-books, video games, and Internet-enabled entertainment services such as iTunes and Netflix, demonstrates that intangible information-based products can be marketed successfully through for-profit contractual transactions in the marketplace, much as tangible goods and services are marketed. Utilitarians are consequentialists, always forward-looking, insisting that an action or a practice is justified only if its future benefits outweigh its future cost. 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. [52] The empirical and law and economics research summarized below is discussed and cited in Abbott, supra note 39, at 810. (6) its purity, i.e. He begins by lamenting what he sees as the limited progress in moral theory concerning first principles (I 1). [14] See id. Secure .gov websites use HTTPS Because of its complexity and subjectivity, the utility calculus is impractical as a tool for every individual judicial case. Consistent with that acknowledgment, the Founding generation wasted no time in ensuring that IP rights were given their due. [65] Specifically, the growth of pirate industries in different parts of the world has constrained returns to creative artists. He has been at UNH since 2002. The first condition is clearly a utilitarian one, for the danger to society is taken into account. [8] He saw government as existing to protect the property persons claim by individual right of acquisition through their labor, which is the source of the value that is created. Explain the utilitarian justification for IP as an incentive for intellectual work. This implies that the value of morality and ethics can be easily evaluated by the effect . To provide a mechanism for utilitarianism to be applied to governmental policy, Benthem created the utility calculus. When the truth emerges, the repercussions go beyond citizens asking themselves whether there is an essential difference between the threat posed to persons subject to the presumption of innocence at the hands of the state and the threat posed by criminals, against whom the state purports to offer protection to its citizens. Share sensitive information only on official, secure websites. The utilitarian or substantive case for intellectual property rights is noteworthy for their essential rationale. For these felons, asking them to give up smoking pot bordered on cruel and unusual. 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. Abstract [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. 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. [16] The Federalist No. The financial cost of education typically is not extravagant and does not outweigh the long-term positives and happiness that education produces. Nick Smith is professor and chairperson of the University of New Hampshire (UNH) Department of Philosophy. [1] See, e.g., N. Stephan Kinsella, Against Intellectual Property (2008), file:///C:/Users/abbotta/Downloads/Against%20Intellectual%20Property_2%20(1).pdf. However, utilitarian ethics evolved to mean a decision based on the maximum benefit for the greatest number of human beings [ 1 ]. The wife was told by her probation officer that something was wrong with her urine. In short, IP is justified on natural rights grounds; references to the English legal tradition are mere window dressing. In these campaigns, torture is used as a terror tactic. They are rational beings and thus have to obey the universal law (moral law) according to Categorical Imperative. The U.S. Patent and Trademark Office provides the following definition of a copyrighted work: Computer software is also protected by copyright. When we put. "displayNetworkTab": true, [54] Joan Farre-Mensa, Deepak Hegde, & Alexander Ljungqvist, The Bright Side of Patents, USPTO Working Paper No. 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. [59] See, e.g., International Copyright Protection, Encyclopedia.com (2005), http://www.encyclopedia.com/topic/International_Copyright.aspx. its chance of not being followed by sensations of the opposite kind (pleasure by pain, pain by pleasure). The long-standing efforts of the U.S. government to push for strong foreign copyright enforcement and robust copyright protection in international trade negotiations. . 477 (1850). According to one reading of Jeffersons 1813 letter to Isaac McPherson, Jefferson suggests that even property rights in land require government monopoly protection, since [s]table ownership is the gift of social [not natural] law, and is given late in the progress of society.[22] Accordingly, it would be a huge mistake to rely on Jeffersons views as representing the Founding-era understanding of property in general, let alone IP. 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). Feature Flags: { In particular, the guidelines taught that patent licensing transactions were generally procompetitive and that patent holders should be allowed to obtain profits reflecting the full value of their property right. Furthermore, by raising the probability that patent applications will be denied and by injecting additional uncertainty into the evaluation of existing patents, these policy changes threaten to cause some socially beneficial patents (not just bad or inappropriate patents) not to be pursued. The utilitarian justification is based on experience. Though not fully articulated until the 19 th century, proto-utilitarian positions can be discerned throughout the history of ethical theory. To learn from ones mistakes is good; to learn from the mistakes of others is better. Binder, Guyora, and Nicholas J Smith. He eventually failed his drug test, and had to go to jail for six months. 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. One of the co-workers had three DWIs, another was a burglar, a third was a drug dealer, and the fourth and fifth were husband and wife, both of whom were guilty of writing hot checks, with the husband having the added offense of assaulting a police officer. 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]. What might be more open to contention is the question of whether it is all right to punish someone less than he deserves. Copyrights. 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. The constituent elements - hedonism and consequentialism - were present in Greek thought. The utilitarian standard is not the agent's own greatest happiness but the greatest amount of happiness altogether; and even if it can be doubted whether a noble character is always happier because of its nobleness, such a character certainly makes other people happier, and the world in general gains immensely from its existence. Utilitarianism, however, will say what Peter has done is morally right. I will, however, make the case of rule utilitarianism. Even though I designed my sentencing guidelines using utilitarian principles, as described for a drug-use crime above, it is impossible for any standard sentencing guideline to properly address the complexities of every criminal case. Total loading time: 0.195 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. I would like to specifically thank the REAP program, Mr. Dana Hamel, and the Rogers Family Undergraduate Research Fund for supporting my research that made this article happen. If there is a public policy problem that needs solving, it is not the need to reduce overly strong copyright protection, but rather the imperative to combat copyright piracy more effectively. That is to say, there is a tendency for them to arrive at the conclusion that incapacitation and deterrence are fine, provided they are mere accompaniments to our rehabilitative efforts to reform the criminal. 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. 14. One of the problems with retributive justice is that it presupposes the existence of free will: only if man has free will can we truly say he deserves punishment. Jeremy Benthams System of Measuring Pain and Pleasure, As written in Bentham, Jeremy. Some strong as well as weak or poor patents stand to be erroneously rejected or struck down due to inevitable error costs associated with patent application reviews and with judicial review of litigated patents. The idea of utilitarianism is tightly intertwined with the philosophy of consequentialism. Google Scholar. The deterrence theory supports morality. 4. According to this theory, the moral nature of an action can be deduced by calculating its net utility. Introduction: Utilitarian Social Philosophy. What I learned from all this was that probation is no mere slap on the wrist. [17] George Washington called on the First Congress to pass legislation securing IP rights,[18] and it did so, enacting the nations first Copyright and Patent Acts in 1790. Mahalingam, Indira, Communication without Language - A Framework (1983) PhD thesis (Exeter University) where I discuss the possibility of ascribing beliefs and intentions to languageless creatures. Google Scholar.). [4] See The Heritage Guide to the Constitution 153 (David F. Forte and Matthew Spalding eds., 2d ed. A major issue plaguing the world of politics today is that of abortion. Thomas Jefferson clearly cannot be cited as an example of Founding-era denigration of or distrust for IP rights. 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. "useSa": true 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 Utilitarianism holds that the most ethical choice is the one that will produce the greatest good for the greatest number. [5] The following discussion draws in substantial part on Randolph J. LockA locked padlock Render date: 2022-11-04T07:33:31.626Z Although scholarly opinion is not unanimous and correlation does not necessarily imply causation, the weight of recent empirical findings by and large lends solid backing to strong patent protection. Utilitarianism in collection edited by Warnock, Mary (1969) London: Fontana, pp 3334 The Works of Bentham.The Works of Jeremy Bentham, Vol. 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 Trade Commn (Oct. 2003), https://www.ftc.gov/sites/default/files/documents/reports/promote-innovation-proper-balance-competition-and-patent-law-and-policy/innovationrpt.pdf; The Evolving IP Marketplace: Aligning Patent Notice and Remedies with Competition, Fed. Before coming to UNH, Smith, who holds a JD and PhD, worked as a litigator for a private law firm and as a judicial clerk for the Honorable R.L. Nygaard of the United States Court of Appeals for the Third Circuit. This article makes it clear that the Founders recognized the importance of patents, making sure to discuss them in the Constitution. Thus it is that in Texas, capital punishment has to be justified on both utilitarian and retributive grounds. 02 January 2018. Ecological Justification: An ecosystem that is necessary needed for the survival of some species that interest us, or that the system provides itself some benefit. Google Scholar. The reward for labour and personality theories are from the deontological/normative school of thought, while the incentive-oriented theory is from the consequentialist school of thought. IPWatchdog (July 30, 2015) (Patent and Trademark Office Director Michelle Lee might be willing to surrender the rights of individual innovators to heed the call for sweeping, and perhaps unnecessary, patent reform), http://www.ipwatchdog.com/2015/07/30/obama-administration-seek-amendments-to-innovation-act/id=60017/; Gene Quinn, Obama on Patents: The One-Sided USPTO Patent Litigation Beta, IPWatchdog (Feb. 26, 2014) (Obama Administration patent litigation guidance is pro-infringer rather than neutral), http://www.ipwatchdog.com/2014/02/26/obama-on-patents-the-one-sided-uspto-patent-litigation-beta/id=48273/. Utilitarianism is a theory of morality that advocates actions that foster happiness or pleasure and oppose actions that cause unhappiness or harm. Despite the utility calculuss appealing goal of creating happiness, I was unhappy with the results when I applied these hypothetical sentencing guidelines to specific examples of drug crimes. For utilitarians, stealing in itself is neither bad nor good; what makes it bad or good is the consequences it produces.
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