A government-granted monopoly is a monopoly granted by a government to create artificial scarcity in an attempt to promote a public good. This term is a more accurate description of how such monopolies are handled under many legal systems than "intellectual property" because while true property and possessions can't naturally be copied, things that would be protected under GGMs can. (I worded the previous sentence carefully so as not to beg the question.) Examples of GGMs include:

  • public utility franchises: The economies of scale apparently lead to lower costs when one entity can fill the needs of an entire area; however, this must be balanced with the benefits of competition. For example, 18 USC 1696 provides a monopoly for the U.S. Postal Service.
  • copyrights: To promote the progress of science and useful arts, Congress has granted specific rights of exclusion to those who create original works of authorship.
  • trademarks: To protect commerce from unfair competition, Congress has set up the Lanham Act, which prevents entities in the same domain from adopting confusingly similar names for products. Trademarks denote the origin of a product and represent the goodwill (reputation) of its maker.
  • patents: To promote the progress of science and useful arts, Congress has granted specific rights of exclusion to those who invent new and useful devices, methods and materials. Design patents can provide an alternative or supplement to trademarks.

Rights under a GGM are often licensed to third parties. Some types of GGM (notably trademarks) require licensing agreements to be spelled out publicly (that is, sue anyone who doesn't have an explicit agreement or lose your monopoly).

Ways GGMs can be abused

In my opinion, the following constitutes abuse of a GGM:

GGM terms too long for their purpose

Does something Amazon.com spent five minutes designing really deserve 17 years of restrictions? Do cartoon characters really deserve 95-plus years of copyright? It has been estimated that a 95-year copyright provides 99.8 percent of the value to the copyright owner that a perpetual copyright would provide, leaving only 0.2 percent to the public.

Licenses not available under reasonable conditions

Most EULAs restrict reverse engineering of software. Fan sites can't get licenses for popular entertainment franchises such as Noddy and Star Trek. You can't buy music online without the 2- or 3-day latency of shipping or without paying for filler songs you don't want. Remix artists can't make transformative use of popular songs or even of "Happy Birthday to You" (which is now owned by AOL Time Warner). A drug company can time the release of a new product to let the government declare the previous product unsafe just as it enters the public domain.

TheBooBooKitty brings up the example of the Tron arcade game. The Walt Disney Company refuses to make new reproduction sideart for Tron cabinets. Disney also refuses to license the sideart to third parties under any circumstances. One company that requested a license "basically offered a deal that would give them about $45,000 to let someone print up 500 copies of Tron sideart. [Disney] of course told them to piss off. Funny thing about this is that they are saying NO to the best repro guy around in order to "preserve their property", yet they aren't doing a damn thing about the shoddy repro stickers already on the market (by arcadegrafx)." Complain to mei-lan.stark@disney.com about this issue.

Unilateral change of conditions of a license

Disney went in and bought senators to get 20 more years of exclusive rights to Mickey Mouse without the consent of consumers. The copyright industry also neglects to inform consumers of the rights they lose under the Digital Millennium Copyright Act when they buy copies of ^W^W^W license films on DVD. Submarine patent owners implicitly license their GGMs to the general public for a few years and then suddenly revoke the licenses and sue everybody involved. Unisys is notorious for this; when it changed the conditions for LZW licensing to exclude free software, the community organized Burn All GIFs Day.

© 2001-2002 Damian Yerrick. Verbatim copying and redistribution are permitted.





-= f__k sonny bono and buttf__k cher =-





Cletus the Foetus wrote the following in response to a question I asked about his writeup in Why equal distribution of income is good:
With regard to being sued for a sculpture, I don't think it's possible to sue for more damages than actually incurred. If I only made $8 000, nobody could make a case that I had done $80 000 worth in damages. In any event, you've introduced the issue of "intellectual property," which is something I specifically avoided mentioning in that w/u. A sculpture is a material good, not an intellectual one, and I implied nothing about "ownership" over the *shape* of the sculpture, only the physical form. I followed that link -- I think the suggestion that people are incapable of true creativity is short-sighted, ignorant bullshit. In fact, I am opposed to all forms of intellectual property *because* they compromise the artist's ability to implement a creative vision. Incidentally, there are broader economic effects as well, but my point is that if you have something to say against intellectual property in the name of artists, buddy, you're preaching to the converted. In fact, I'm hoping to be able to do graduate research in the relationship between art and the market process, with exactly the intent of destroying the myth of intellectual property.




The last fascist dictator was Benito Mussolini. The next will be Jack Valenti. He already owns the legislative body of the United States; otherwise, we wouldn't have DMCA or the Bono Act. Don't like it? Protest it!
Lawrence Lessig refers to Article I, sec. 8, cl. 8 of the U.S. Constitution as the monopolies clause. That clause authorizes Congress "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." Jefferson himself thought of what we now call intellectual property as a government-granted monopoly.

Sadly, courts have not yet read the purpose part of the monopolies clause as a limitation on Congressional action. See the Eldred v. Reno/Ashcroft litigation over the constitutionality of the Sonny Bono Copyright Term Extension Act.

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