“American inventors and our innovations run the world. The engine of our patent system requires refurbishment and fine tuning, not a bid to relegate it to the junk yard.”
Jack Dorsey, a tech billionaire, grew exasperated this past weekend by various lawsuits regarding his OpenAI program. It seems that various content owners, such as the New York Times and the Daily News, were upset that their countless articles and writings were scoured by Dorsey’s OpenAI to train Dorsey’s OpenAI, without consent. Since this could constitute copyright theft, lawsuits ensued. Thus, let’s “delete all IP law,” Dorsey posted on X, to which Elon Musk, himself involved in numerous IP suits, and famously not a fan of patents, added, “I agree.”
Now, I am not a superstitious sort, but when billionaire tech titans proclaim from on high, we mortals are often wounded. Indeed, pending legislation could be affected and laws could be changed to further undermine the existing IP laws we have. Tech has already curtailed some of the more powerful aspects of patent law, e.g., the injunction right.
IP Also Had a Foe in Ford
But this is not the first time a prominent entrepreneur has threatened IP. Henry Ford had great animus toward the American patent system. Allegedly, his fame was so great that he considered a run for President in 1924, and on his platform of goals was the abolition of the United States Patent System. Ford was upset because decades earlier he and other nascent car manufacturers were forced into a licensing arrangement for the “horseless carriage.” Ford vehemently fought this arrangement and invalidated the patents standing in his way. Henry Ford is now revered for his innovative acumen and obtained many patents himself.
Like Ford, Dorsey—and apparently Musk—do not want mortals meddling in their affairs. Ford wanted to make his cars without any encumbrances of paying someone a royalty on IP. Henry Ford wanted to do what Henry Ford wanted to do. Dorsey and Musk also want to do what they want to do – without encumbrances preferably. Unfortunately, now there is some popular support for the notion that IP laws are bad or antiquated for the times. Hopefully, this unwise position will not live long or prosper.
Courts Have Let Flagrant Offenders Run Free
Did the OpenAI program have to feast on the data in millions of articles of the New York Times? No. But it apparently did, and without the proper written authorizations of the content owners. Like a property trespass, this was an unwanted and unwarranted intrusion, a taking. But will there be a punishment?
There are, for example, other instances of this type of taking where the takers go unpunished. Google is a flagrant offender of IP rights, doing evil in this regard. In the Google books project, they copied millions of copyrighted books without any authorization, yet this was in the end excused as being transformative, a now mostly disallowed doctrine. More recently, Google took substantial portions of Oracle’s copyrighted interface code to enable their own Android phone. In a shameful decision, the Supreme Court bent the law on copyright to permit this taking.
The tech billionaires operate on another level. Like Ford and Google—but hopefully not Dorsey and Musk—IP impediments can be avoided simply by taking the IP without any permission. Sadly, our Supreme Court tends to agree of late.
The IP System Needs Help, Not the ‘Old Heave-Ho’
I doubt Dorsey will get his wish to make IP go away anytime soon. The New York Times and their lawyers have apparently good arguments for copyright violation, so these cases will vex Dorsey for some time.
Elon Musk, with his incredible ingenuity in many diverse areas, must be swimming in patent litigation, hence his frustration. Unfortunately for Musk, his cutting-edge innovations take time to get through the patent review process, by which time he is on to version 5.0. But demolition of the patent system is not the answer Elon.
As I have stated many times, the American patent system should be stronger, but the rights of patent holders and many copyright holders have been eroded over the last two decades by the inaction and even corruption of a Congress, influenced heavily by the tech industry, by a daft Supreme Court that continues to undermine patenting current technologies, and presidents that mouth the words “intellectual Property” but do nothing more to protect it at home. American inventors and our innovations run the world. The engine of our patent system requires refurbishment and fine tuning, not a bid to relegate it to the junk yard.
Dorsey and Musk should retract their errant statements before more damage is done.
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