I deleted it because I didn't think it was worth expanding on to sufficiently make the point in this place. I don't claim to be an expert in this field, I simply wanted to point out that as I understood it, grellas was not fundamentally misunderstanding the fundamentals of the law, as alexqgb claims. In this sense, the existence of a contrary view (putting aside whether this paper is contrary) would in part be a contradiction to alexqgb's point about grellas. If an article in a respected law review did agree with grellas, alexqgb would certainly be in error to make the claims about grellas that he does. I will accept that I may have made an error in my analysis. Although I'm not convinced I misread the above paper, I don't wish to spend the rest of my night defending this in some likely to not be read comment thread :-). If I was unfair to you, alexqgb, I'm sorry.
To provide a brief defense of what I wrote, the paper I cited heavily relies on Lockean property theory in defence of IP, which goes against the idea of IP laws being designed to give intangible goods with commercial value. Like tangible property laws, intangible property laws are designed to protect that which is rightfully yours as a result of your labor, as I understand it.
For example, "If a man establishes a business and makes it valuable by his skill and attention,
the good will of that business is recognized by the law as property. If he adopts and publicly uses a trade mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission." (2022, quotation of 1984 court case). The man running the business created the commercial value, which is then protected by the government (and therefore, yes, more valuable).
And, "he need not argue that the right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and
he ought to be protected in the enjoyment of it." (2023, quotation from 1824 in the House of Representatives)
"Circuit Justice Grier and District Judge Dickerson found Webster’s argument compelling because they and other jurists agreed with the Lockean principle that the patent laws secure an inventor’s right to “enjoy the fruits of his invention.” " (2024, referring to an 1871 court case). And what are the fruits of his invention if not, at least in part, commercial value?
Interestingly, the author then notes that the use of identifying patent infringers as pirates "who stole from inventors the valuable fruits of their labors" goes back to 19th century courts.
To me, this does not sound like "IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies." But perhaps I'll leave this to the legal experts now.
To provide a brief defense of what I wrote, the paper I cited heavily relies on Lockean property theory in defence of IP, which goes against the idea of IP laws being designed to give intangible goods with commercial value. Like tangible property laws, intangible property laws are designed to protect that which is rightfully yours as a result of your labor, as I understand it.
For example, "If a man establishes a business and makes it valuable by his skill and attention, the good will of that business is recognized by the law as property. If he adopts and publicly uses a trade mark, he has a remedy, either at law or in equity, against those who undertake to use it without his permission." (2022, quotation of 1984 court case). The man running the business created the commercial value, which is then protected by the government (and therefore, yes, more valuable).
And, "he need not argue that the right of the inventor is a high property; it is the fruit of his mind—it belongs to him more than any other property—he does not inherit it—he takes it by no man’s gift—it peculiarly belongs to him, and he ought to be protected in the enjoyment of it." (2023, quotation from 1824 in the House of Representatives)
"Circuit Justice Grier and District Judge Dickerson found Webster’s argument compelling because they and other jurists agreed with the Lockean principle that the patent laws secure an inventor’s right to “enjoy the fruits of his invention.” " (2024, referring to an 1871 court case). And what are the fruits of his invention if not, at least in part, commercial value?
Interestingly, the author then notes that the use of identifying patent infringers as pirates "who stole from inventors the valuable fruits of their labors" goes back to 19th century courts.
To me, this does not sound like "IP laws are designed to ENDOW intangible goods with commercial value by creating artificial scarcities via sanctioned monopolies." But perhaps I'll leave this to the legal experts now.