It means the right is exclusively granted with them. I.e. no one besides the author gets to control the exclusive rights of a patent. By your logic, they can't even license it because "it's an exclusive right".
They control the license according to the terms of a license. But once a patent is sold the author of it no longer has any right to it.
Authors and inventors are mentioned with the same language in the clause. Since it has always been true that authors can basically only profit from their writings by selling copies or originals of their works (without selling the right to the copyrighted material itself) then some form of licensing is necessarily included in the clause for both copyright and patents.
There may have been journalists at the time who wrote works for newspapers owned by others. If so, this would be a reason to include the right of selling all of the rights to one's writings or inventions in the clause. I genuinely don't know if this was the case though.
I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights.
There are plenty of laws which have been ruled unconstitutional. But it takes someone making the complaint to a court for this to happen. Otherwise the legislature does whatever it wants.
Currently a majority of the US Supreme court thinks that the status quo at the time of the writing of the US Constitution or its amendments has bearing as to the meaning of those texts. Thus I mentioned back then authors sold copies of their works while retaining all other rights as indicating that "licensing" is within this clause. Whether or not total sales of the rights to the work is within the purview of the clause is another question that I'm curious about.
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I'm asking whether the laws which allow this are within scope of the US Constitution's clause on intellectual property rights.
Which laws are those? I'm not sure why it wouldn't be in the scope of the constitutional grant of authority to congress. "by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" The use of exclusive here makes perfect sense with how things worked then, and today. I think you are getting caught up in non-existent semantics. What would be the purpose of the clause if authors/inventors couldn't sell their work? what would be secured in the exclusive rights that benefits the furthering of arts and science if inventors and authors couldn't exploit their exclusive rights? I'm a copyright and patent litigator and I've never heard anyone make the argument you are making.
> What would be the purpose of the clause if authors/inventors couldn't sell their work?
Not that they can't sell their work, but that they can transfer their exclusive rights in such a manner that they themselves can no longer exercise those rights.
And laws which allow this are obviously, by definition of the words at the time, not "securing" those rights to the authors and inventors. You can't secure something to someone by allowing them to (both post-hoc and especially pre-hoc) permanently transfer those rights.
Especially the pre-hoc transmission of rights as seen in various contracts (work for hire, etcetera) completely flouts the "securing" basis of the constitutional IP clause in that under no circumstances whatsoever did the rights ever belong to the author/inventor. The Constitution did not grant congress the authority to make laws allowing intellectual property protections to a pre-hoc transfer, but only possibly to transfer in which the author/inventor first had exclusive rights. Therefore any contracts which automatically assign any rights to any creations to another party the moment those creations are created cannot be covered by intellectual property protection laws created pursuant to Article 1, section 8, clause 8 powers, but must have some other constitutional basis (possibly under the commerce clause?).
I guess you could get around this argument fairly easily by saying that the "limited time" is X number of years or until sold. But then I still don't understand under what authority the purchasing party gets these IP rights, as they are not the author or inventor, and thus not entitled to any securing of rights under this clause. If they do have rights it must be under either common law which pre-existed 1789, or under another section and clause of the Constitution, since this is not a 9th or 10th amendment issue. Congress can't just make law willy-nilly however it wants to, but must do so under one of its enumerated powers.
I guess another way around this, and possibly the way it is done in IP law (you would know better than I), is that these rights aren't literally sold to another, but instead a permanent licensing contract is signed in which the author/inventor grants use of their exclusive rights to the licensee to do with however they wish. In this way the "exclusive rights" would still be secured to the author/inventor, though exercised by the other party. This seems like sophistry, but much of the law is.
>And laws which allow this are obviously, by definition of the words at the time, not "securing" those rights to the authors and inventors. You can't secure something to someone by allowing them to (both post-hoc and especially pre-hoc) permanently transfer those rights.
I don't follow that those words are the "laws" you are talking about. The security of the right is the intellectual property. The patent secures the space the invention covers. The copyright secures the space the novel expression covers. Your interpretation of "secure" is completely specious and has no basis in law.
Can you point to anything to support that understanding of "secure"? It seems like you are doing the opposite than what you claim to be. Rather than reading "secure" as they meant it at the time, you are reading a new definition of "secure" based upon how you feel IP should be resolved today.
This is all besides that if an owner can license, then transferring the IP itself is trivial, as one can grant a license that covers all aspects of the exclusive rights.
I find it a bit ridiculous that you write "ways around this" as if your argument has any actual basis in law. It doesn't, and it seems like you have no experience in licensing IP rights. While that's not necessary to have an opinion, it certainly has not left you with an understanding of how things work such that you could base a reasonable opinion off of that.
You're missing that I'm trying to figure out how this actually works. Not saying how it should work. I'm not a sovereign citizen here, merely a confused citizen.
> Can you point to anything to support that understanding of "secure"?
I'm a regular person who is trying to interpret the law. I'm failing. This is probably because I'm getting too lost in thought. But the law should be clear enough that regular people can understand it without citation or legal knowledge. It should not be a specialized field except that specialists have broad facility in application. It's a definite improvement that modern laws abandoned parsimony for as precise as possible definition of terms.
That's all.
And the plain meaning of "secure" at the time was: "The sense of "get possession of, make oneself master of" is from 1743." https://www.etymonline.com/word/secure With "no one can serve two masters" a biblical phrase that Jefferson would have been well familiar with.
> This is all besides that if an owner can license, then transferring the IP itself is trivial, as one can grant a license that covers all aspects of the exclusive rights.
Exactly. I did eventually figure this out. I still think that it's a sophistic end-run around the plain text of the clause, unless said license includes a clawback provision that the author/inventor can unilaterally initiate.
But I also believe that the founders knew about the Sophists, Shakespear's Merchant of Venice, and the like, as well as some of the arguments at the time over what to include in the Constitution. And that if they wrote ambiguity into Constitutional provisions, they likely did so on purpose. Definitional changes accounted for. Which puts me at odds with most jurisprudence.
This conversation is becoming absurd. I do not understand how you read that definition of secure to mean that the master cannot sell their own shop. I’ve repeatedly asked you for your support on what is a very esoteric reading of the word secure, as opposed to the plain reading I keep providing to you. It’s one thing for you to speculate, but to insist that your forced reading is the plain one is a bit ridiculous IMO. I’m well aware that the law needs to be written clearly for plain understanding, it is. You are the one advancing a meaning that says by giving something to someone, they can’t also then sell it? That doesn’t mesh with the founder’s understandings of property rights at all or the definitions themselves.
It’s a bit of a joke, and I guess you don’t realize it. But the point about academic references is that you are making an academic argument. You’d think that if your point was true, that it is SO OBVIOUSLY beyond the plain meaning of the word, SOMEONE else would have said something in the ensuing 200 years. Yet here we are, you telling me you know what the founders meant, despite all the evidence and common sense running against you. Okay buddy - good luck with that.
It's not just "secure". It is "exclusive". "Exclusive" has always meant "exclusive".
The Constitution only allows congress to "exclusively secure" IP rights to the originators of the material. It does not allow congress to "exclusively secure" rights to anyone else. The only way I can make this work is through an originator licensing a work to a single other entity, and in said license guaranteeing that other entity that the originator will not otherwise use any rights they own except to the extent of the exclusive license to the other entity.
This works. I still think it only really works if the originator has the unilateral power to break the agreement. But I can understand someone legitimately making a counter-argument.
In an originalist sense, the founders were very much against royal grants of monopoly, so limited the power of the government to grant monopolies solely to the originators of ideas.
I'm no longer confused, so yes we can drop this line of discussion. I hope you understand that I wasn't talking about just one word, but the word in the context of the rest of the clause.
It doesn't work and the only historical evidence you can point to is the merchant of venice, not the actual theories of property rights the drafters had in mind. This is an asinine argument. Exclusive here doesn't mean the owner can't sell, it means he's the only person who can decide to sell. That's why it's their exclusive right.
> You’d think that if your point was true, that it is SO OBVIOUSLY beyond the plain meaning of the word, SOMEONE else would have said something in the ensuing 200 years
The only people who would advance an argument against transfer of IP rights are those who don't have standing to make such an argument.
I ask you about any actual writing on this topic to demonstrate that you are making this up wholesale on your own. You haven't rebutted that. You just made my point for me with this ridiculous argument that in the entire history of the constitution of the united states, and all the years of interpreting it since then, everyone has been so invested in being pro-patent, that nobody besides you ever realized that the founders OBVIOUSLY meant that IP owners can't transfer their rights
(what could they do with it then? you realize not all inventors are interested in running businesses? licensing was not a new concept to the founders. obviously you have no rebuttal to this, but I just want to hit the point home because I find your argument so obnoxious in the profundity you think it belies)
including the founders themselves, who you cannot cite to say meant that their entire concept of property rights was somehow distinct when it comes to patents.
YOU ARE TOO USED TO ARGUING WITH OTHER LAWYERS THAT YOU HAVE FORGOTTEN HOW TO CONVERSE AND LEAD PEOPLE TO THE TRUTH.
In my "arguments" as you call them I am not citing jack shit other than the constitution, time-specific definitions, and some recollections.
AGAIN I AM A CITIZEN TRYING TO UNDERSTAND THE LAW BY READING THE PLAIN TEXT OF THE LAW.
> including the founders themselves, who you cannot cite to say meant that their entire concept of property rights was somehow distinct when it comes to patents.
There were a lot of distinctions written into the constitution that separated it from preexisting common law and royal prerogative. Titles of nobility, etcetera. So when trying to understand the basis of the law I necessarily revert to the knowledge that the constitution is the supreme law of the land, and thus it's text is definitive as to jurisdiction and powers.
AGAIN, I SAID THAT I FINALLY UNDERSTOOD THAT THEY CAN EXCLUSIVELY LICENSE THEIR RIGHTS. BUT THE CONSTITUTION DOES NOT GRANT CONGRESS THE AUTHORITY TO GRANT RIGHTS TO SOMEONE WHO IS NOT THE ORIGINATOR. SO I WAS TRYING TO FIGURE OUT HOW THIS WORKS. *I NOW UNDERSTAND HOW THIS WORKS!!!!* I still think there are holes in it, or of my understanding of it, but these aren't killer holes.
FOR GOD DAMN SAKE. HOW IS IT OBNOXIOUS TO WANT A COMMON CITIZEN TO UNDERSTAND THE VERY LAWS HE LIVES UNDER? AND THEN CALL HIM ASININE AND OBNOXIOUS FOR TRYING TO FIGURE IT OUT VIA DIALOGUE?
>YOU ARE TOO USED TO ARGUING WITH OTHER LAWYERS THAT YOU HAVE FORGOTTEN HOW TO CONVERSE AND LEAD PEOPLE TO THE TRUTH.
No, you're talking out of your ass, and you wont listen to reason.
>AGAIN, I SAID THAT I FINALLY UNDERSTOOD THAT THEY CAN EXCLUSIVELY LICENSE THEIR RIGHTS. BUT THE CONSTITUTION DOES NOT GRANT CONGRESS THE AUTHORITY TO GRANT RIGHTS TO SOMEONE WHO IS NOT THE ORIGINATOR. SO I WAS TRYING TO FIGURE OUT HOW THIS WORKS. I NOW UNDERSTAND HOW THIS WORKS!!!! I still think there are holes in it, or of my understanding of it, but these aren't killer holes.
Not sure why you think repeating yourself in caps-lock makes a difference. Congress can't grant a patent or a copyright to anyone else but the inventor or the author. The author and the inventor are free to do what they want with that property right. Nothing you said about the word exclusive or anything else changes. This is entirely common sense as I've pointed out to you several times. I also pointed out that your reading of the text is baseless, defies common sense, and the plain definition of any of the words. You, of course, insisted otherwise and that you were obviously correct despite a complete dearth of any kind of support. There's no reason for you to be electronically yelling at me, you got yourself here on your own. You were pompous and rude, why should I be courteous to you at all?
Patents can't sell themselves, just the same as a house or slave. I think that's consistent with their conception of property rights, which save for slavery, remains unchanged in today's society. I do wonder if you think before you post.
