Shubha Ghosh, a Law Professor, tried to apply Sen's silly notion of 'niti' and 'nyaya' to intellectual property.
The proper analysis is as follows. Economic policy (which is what niti, contra Sen, actually means) may want to promote various types of innovation and thus create intellectual property of certain types through Legislation or International Treaty or administrative fiat. As technology changes, such provisions may change. Thus when hardware was what seemed important, it was difficult to patent stuff embedded in software.
Poorer countries may not expect to do much scientific innovation but may give trademarks to artisanal produce. Thus, economic policy would shape intellectual property law. However, under international treaties, some things may be imposed. Here a legal argument may be made why a particular type of intellectual property right should or should not hold for equitable or other reasons. This is where 'Nyaya' maxims come in. They represent a hermeneutic of treaty or other such written law and make legal arguments defeasible.
This is merely what already obtains. Can Sen-tentious shite add anything?
As background to the discussion of The Bhagavad Gita, several concepts are worth explaining. The first is that of dharma, which is often translated as “law.”
The Greeks translated it as eusebia which is pietas in Latin and piety in English. Dharma is that which is piously observed and upheld. This may involve a particular 'Niyam' (Rule, Observance) but, equally, it may not. The consequences of such actions are immaterial. One reason for this is that outcomes are unknown in advance. But the reason given by Scripture is that the actions themselves are, in some sense, illusory. In the Gita, God is the only efficient cause. We live in an 'Occassionalist' Universe.
But, as Professor Don Davis emphasizes,
Davis thinks the law is the theology of ordinary life. Theologians reject this view. The ordinary life of people of different religions, or no religion at all, may be similar. But their beliefs about the after-life and their religions observances, which are by no means part of ordinary life, are very different.
dharma means law in the broadest sense, not limited to positive law or to the workings of particular institutions such as courts or legislatures. Instead, dharma means law which includes social mores, norms, customs, and expectations.
So, it does not mean law at all. A dharmic individual ignores all sorts of stupid and unjust and oppressive laws. Indeed, he may exit a particular jurisdiction so as to go and settle in a Wilderness, where there is no Rule of Law, precisely for this reason. That which he piously upholds or observes is his dharma. But this observance may involve a 'law-less' choice sequence.
A concept related to dharma is that of karma, loosely translated as “right action.”
No. Actions can be bad as well as good. Karma is the sum total of past actions which determine what will happen in the future- even after death.
What makes an action right, as opposed to a wrong action that can be punished, is the concept of law as dharma.
No. For Theists, God makes an action right or wrong or punishable or laudatory, but only if he wishes to do so. God is the only efficient cause in the Universe. Ghosh Babu is not understanding that, in the Gita, Krishna is the Lord Almighty. He is thinking 'Krishnaji must be Professor innit? Just he dropped in to chat with Arjuna.' However, this is not what the Gita, a Hindu Scripture, says. All occurs, all exist, by the Supreme Lord's sovereign and solitary Will.
Karma embodies a form of consequentialism whereby right action leads to right results and fruits while bad action leads to punishment.
Not in the Gita. You can be totes wicked and yet be saved purely by God's grace. Causation is an illusion. To be on the safe side, worship God and do your duty without attachment to the fruit of action. This doesn't mean God can't exalt an atheistic and evil person while not doing anything for a nice theist, except in so far as He wishes to do so as a pure and gratuitous gift.
But karma is understood in relationship to dharma.
No. It was explained in this manner in the Bhagavas Gita to a heteronomous 'agent', rather than an autonomous 'principal'. But, in the Mahabharata, there is also the Vyadha Gita which applies to people who decide what they want to do according to their own interests.
The relationship between dharma and karma dictates what it means for a person to be in the world and interact with others.
No. Both are delusionary or sublatable concepts which, in any case, nobody except God could understand.
Right action depends upon law in the broadest sense, going beyond mandates and statements of lawmakers.
No. It depends on piety but what piety depends on depends on God.
As Professor Davis explains, “Individuals act, but they act in social roles that only collectively define their worldly persona.”
No. Individual acts are done in personal roles. Social acts are done in social roles. The Judge acts as an individual when he orders pizza. He acts as a judge when he pronounces judgment. Fuck knows what a 'worldly persona' is. Davis has a worldly persona as a stupid Professor of a shite subject. But he may be a charming harmonica player. Still, his worldly persona is shitty because he is writing crap about a country he does not know and a religion he does not understand.
Action here refers to acts towards others. But often these acts between people are mediated by things and, according to Professor Davis, the relationship between individuals and things is fragmented. Property defines this set of relationships, and the fragmentation is transparent in the range of objects that fall into property relationships.
Meaningless shite defines nothing. We know what property means. We don't know what 'set of relationship if defines' because property can't talk. It can't write. It can't define anything. Nor can Davis. He has shit for brains. What he means is that there are different property claims over things. These may be 'fragmented'. They may not.
Coincidentally for the purposes of this paper, Professor Davis discusses a music downloading website as an example. On such a website, there can be tens of thousands of property interests with respect to the multitude of files uploaded and downloaded.
No. Either everything is either public domain or leased or owned in some manner by the website or else the thing does not represent property. It represents theft.
Similarly, in the Hindu concept of satva (the equivalent of property),
He means 'svatva', not satva.
relationships can have many dimensions and many claimants. Professor Davis describes the contrast between satva and Western notions of property as follows: “In the Hindu view . . . property is a token of relationships, while [in the West] relationships are tokens of property and contract, the objectification of the will and the freedom to transact those objects through agreements.”
This is nonsense. A thing is either svavtva or asvatva- owned or not owned though there can be a question about property known to have been owned but which is not currently vested in anybody. But such ideas exist in all legal systems. In India, I own this, it is vested in me, and then on receipt of consideration of consideration, I relinquish ownership of it. The person who paid me can vest the property in themselves or do something else with it. A question arises if no consideration has passed. Is it 'benami'? Does it still belong to the original owner? In whom has ownership been vested? If so, it it property held in trust? These are justiciable matters.
Satva is about relationships, but these relationships need to be understood against dharma.
Not unless there is a prior stipulation and the property is held at least partially in trust. There really is no big mystery here. The English had similar things and they quickly adapted their legal system so as to accommodate various different types of Indian property law. The Law is a service industry. The 'stationary bandit' makes a profit by providing different types of Law for different types of customers. Thus, Hindu Navya-Nyaya pundits helped the Brits codify a Hindu Law while Muslim savants helped them codify a Shia, Sunni, and Ismaili Law. Zoroastrians had a particularly crazy type of Law to escape which they had to use complicated deeds and Trust instruments on the English pattern. That's one reason why Parsis were so prominent in the Legal field in the mid-Nineteenth Century. One big reason Indians wanted representative Legislatures was to further reform their various Religious legal codes.
On this point, Professor Davis identifies an unequal and unjust side to Hindu notions of property. As he observes, rules of inheritance and ownership reinforce an unegalitarian social order, which in turn is justified by Hindu law.
By contrast, when the Duke of Westminster dies, all his property is distributed among the residents of Westminster. What waccy baccy was Davis smoking? Speaking generally, Anglo-Saxon inheritance law was more not less inegalitarian than Hindu or Mohammadan law. That's one reason the English speaking people developed Capitalism more quickly and thoroughly.
To counter this, Professor Davis advocates a more complete notion of property—one not rigidly grounded in social conventions and traditions, but in the Hindu precepts of persons and relationships. “To say that property has only socially determined value neglects the more purposive, expressly transcendental value imparted to property through conscious theological agendas, broadly defined.”
But anybody can do something like this when writing a will or creating a trust.
I take Professor Davis to mean that property relationships need to be understood against a broad concept of dharma.
There were plenty of rich dudes in England who had similar concerns. Lawyers drafted their wills or created Trusts for them. Early and Middle Victorian Christianity insisted on a subordinate role for married women. But clever lawyers found ways for women to protect at least some of their property from spendthrift husbands. Finally, in the late Victorian period, the Law was changed so as to give married women a better deal in this respect. Something similar happened in India as elected Legislatures gained more power.
In the remainder of this article, I build on these foundational concepts of Hindu law to make the case for a form of consequentialism in intellectual property, one that takes to heart the relationships that undergird intellectual property.
This is meaningless. Policy regarding property rights may be consequentialist. But property itself isn't. It is merely a predicate.
The dialogue between Arjuna and Krishna animates the consequentialist approach Arjuna’s choice to go into battle seems much graver than the relatively mundane decisions of actors within the intellectual property system, since whether or not to kill presents a graver question than whether or not to copy. But the dilemma facing Arjuna is not simply a matter of whether to engage in battle. After all, Arjuna is a warrior. He signed up for that role and has to act within that role. The question before Arjuna is not about killing, but about the consequences of acting even if the cause is justified. That question is no different from what confronts someone acting or designing within an intellectual property system.
But we know the answer to the question is 'worship God and do your duty without attachment to the fruit'. But, this was already known. There is no 'apoorvata' and hence 'meaning' here. It is the essence of piety to worship God and to do unpleasant duties (e.g. killing people) without taking a sadistic joy in the act. A thing done for your own pleasure is not a duty. It may be considered a perquisite. There too, don't make a glutton of yourself. Show a pious restraint.
? Krishna, in the guise of Arjuna’s charioteer, urges him to fight, not because the ends are just, but because it is his obligation to act.
Why? Because Krishna is God and God's plan for the world involves Arjuna killing his true eldest brother.
In Krishna’s mind, the weighing of consequences detracts from the task at hand and the obligations of the warrior in battle.
No. Krishna is a loving and merciful Lord. The Gita is dramatic. A particular sequence of actions have to be completed for a particular result to be obtained. This is very artfully done. Stupid people like Sen and Ghosh are incapable of understanding this.
Arjuna’s dilemma can be applied to many contemporary situations. A doctor must decide how and to whom to render care.
No. She sees registered patients. An administrator schedules their appointments. The doctor has to diagnose and prescribe in exactly the manner upheld by her profession. She isn't supposed to experiment or deviate from best practice.
A judge must decide on the correct punishment, including the ultimate punishment of the death penalty.
No. A judge must decide the ratio- the point of law- applicable to the case. Determinations of fact may be done by the Jury or be agreed by stipulation etc.
An attorney must decide which client to serve.
Not necessarily. A cab rank principle may apply.
For an inventor, action might lead to a new item being created. Such a person may be driven by many passions. The urge might be spiritual; it might also flow from a sense of pleasure or trivial amusement. Acting to create forecloses other options, such as direct service to others through education, provision of personal needs, or developing interpersonal relationships. But when the new item is created, the inventor must decide what to do with it. Shall it be given away for free? To the highest bidder?
But this is true for the producer of anything at all. Should I give away my farts for free or can I charge people for smelling them?
As with Arjuna, the critical question is how to decide, not simply what to decide.
In which case the question involves deciding whether or not to toss a coin or consult an expert. But this is not the crucial question at all. It is 'do I invent' or 'do I do something else'?
Arjuna’s doubts stem from not understanding how to decide to act.
No. It stems from his prevision of the outcome which in turn was caused by a Gandharva's gift of 'chaksuchi vidya' which however did not vest in him (being asvatva) till he ceased to be master of himself (and thus was himself asvatva) .
Since Arjuna confronts a question of life or death, we can posit an analogous problem for the inventor that illustrates the relevance of Arjuna’s doubts to intellectual property law. Suppose our hypothetical inventor conceives of a wonder drug that can cure disease and comfort the suffering. Should this person invent the drug?
YES! Fuck is wrong with you?
Is there an obligation to invent? Or can the inventor decide that such an invention would not be desirable because of the consequences of overpopulation or the strain on economic resources?
No. Don't be so fucking silly. It is obvious that if one guy can invent a wonder drug, some other guy can invent wonder-wheat or whatever.
If the drug is invented, should it be made available to everyone or should we countenance the death of some who cannot have access because of lack of ability to pay, lack of medical care systems for drug distribution, or failure to provide alternatives such as generics?
These are economic questions. The inventor is not required to answer them. He invents the thing. An entrepreneur makes it commercially available. If economies of scope and scale are available, the thing may be a 'natural monopoly' in which case allocative efficiency is achieved through universal provision paid for through price or service provision discrimination of a graduated Income tax.
Is there a duty to provide the drug once invented? Or is the provision contingent on other factors, such as ability to pay?
These are matters of policy which economists and jurists and politicians can decide though the market may make a better charitable or other allocation.
These questions ask us to confront deeper choices about how to organize invention and distribution.
No they don't. We know that that we will mess up if we try to 'organize invention and distribution'. Look at COVID. China and Russia may have done the above but their vaccination does not seem to be very good. In China's case this has meant stringent lockdowns while the UK and the US enjoyed much greater freedom. India was demanding a comprehensive TRIPS waiver but seems to have walked back that demand. It turned out that voluntary licensing had been more than adequate and the real bottlenecks lay elsewhere. In other words, you had to sweat the small stuff. This is ideographic. There were no 'deeper choices' based on questions of distribution because distribution was a proxy for underdevelopment. Getting rid of intellectual property won't help you if you don't have enough real property and technological and manufacturing capacity. Coase's theorem says who owns what doesn't matter too much provided people are free to do deals. Sen-tentious questioning of everything under the sun merely wastes time.
With intellectual property, the parallels to Arjuna’s dilemma point to the ethical underpinnings of technology and its role in social progress.
This is nonsense. God aint going to resolve any and every dilemma about intellectual property by personally intervening and showing selected people his Cosmic Form. There are no 'ethical underpinnings' to anything. There may be an ethical superstructure of laws and incentives and penalties. But that superstructure may be useless. The underpinnings of technology are purely scientific and economic. If you don't got no money and no smart Scientists, intellectual property does not matter because you neither have it nor can buy it.
A dominant assumption is that progress and innovation are the primary goals of intellectual property.
No. This guy may have heard about the H-bomb. That's a closely guarded intellectual property. We don't want ISIS using H-bombs on us because we don't want to die. Death tends to put a damper on progress and innovation.
Such a view echoes the poet T.S. Eliot, who, according to Sen, interprets Krishna’s advice to Arjuna as follows: “‘And do not think of the fruit of action./ Fare forward.’ . . . ‘Not fare well,/ But fare forward, voyagers.’”
Eliot was a cretin. Krishna is saying 'I am the Lord God Creator. I take on your sins and grant you Liberation.' The fact is, unless death supervenes, everybody 'fares forward'. We can't go back in time.
To Eliot’s thinking, people should create and invent without consideration of consequences.
Fuck off! Eliot wasn't keen on peeps inventing doomsday machines. Indeed, he wasn't too happy even with useful stuff like TVs and transistor radios. Anyway, by the Forties, Governments were intervening directly to get smart peeps to invent stuff useful to National Defense and Economic growth. There is a large Government footprint on R&D though some of that research may be done by Private Corporations.
The act of creation itself that produces the new thing is what matters. In this way, invention “fares forward” and progresses.
But so does ignorance. Time has an arrow. There can be institutional amnesia concerning how a particular technology should be implemented. Apparently, the US military-industrial complex, 'forgot' how to make some crucial component of the H-bomb and had to work hard to recover that knowledge.
The goal is indiscernible and irrelevant. My characterization of intellectual property in nonconsequentialist terms is counterintuitive. After all, creation does not occur randomly. A poet wants to write a specific poem, and a chemist wants to isolate a particular compound. Invention and creation are thus goal-oriented. But the shibboleth is not espousing randomness of any kind; rather, Eliot’s poetic rendition of Krishna’s encouraging Arjuna is in opposition to consequentialist thinking.
In the sense of being stupid or meaningless- sure.
Dr. J. Robert Oppenheimer quoted Krishna’s words during the first detonation of the atomic bomb in the New Mexico desert: “I am become death, the destroyer of worlds.”21 As for technology, Dr. Oppenheimer in his own words stated a version of Krishna’s admonition against consequentialism: “When you see something that is technically sweet, you go ahead and do it and you argue about what to do about it only after you have had your technical success.”
Look at Ukraine. It gave up nuclear weapons. That turned out to be a swell idea- right? Oppenheimer was talking about a situation where the Govt. was spending a lot of money on anything which would kill the enemy on a bigger scale. The atom bomb wasn't particularly lethal but it did have a shock and awe component.
Satirist Tom Lehrer expressed this sentiment in more stark and striking terms in a song about another rocket scientist: “Once the rockets are up, who cares where they come down? That’s not my department. (says Wernher von Braun).”
But 'Dr. Strangelove' did keep the Cold War from turning Hot. Ukraine should have kept its nukes.
Clarifying matters of language between the deontic, utilitarian, and consequentialist approaches Scholars of intellectual property are familiar with deontic, or moral rights, justifications for intellectual property which are framed in opposition to utilitarian justifications.
Since there are both deontic and consequentialist and Aristotelian and Marxian and Gandhian arguments for and against every thing, such distinctions don't matter at all. It is foolish to say there is tension between a deontological approach and a consequentialist approach when there is always a deontological argument for any given consequentialist prescription and vice versa. Philosophy is utterly useless. India looked a fool for its ideological approach to TRIPs. The facts on the ground contradicted its a priori argument. Coase's theorem rules. Sen-tentious shite drools.
But my argument in this paper rejects a purely moral rights view of intellectual property that would posit the rights of the creative and inventive person as the principal foundation for intellectual property law and policy.
Then this dude's argument is shit. Either there is an incentive for inventing or there isn't. If there isn't, invention will happen elsewhere. Your country will turn into a shithole. It is a different matter that the incentive mechanism to reward invention can differ but so long as there is a link between invention and reward the precise nature of the mechanism matters little. Moreover, the mechanism design has to be ideographic. If markets are under developed, market based mechanisms would be useless. Thus, in the Eighteenth Century, Princes might directly reward inventors and then use the State machinery to implement the innovation. By the middle of the nineteenth century markets were well enough developed in some parts of the world for patent law to be enforceable through market mechanisms- i.e. contracts re. licensing were enforceable.
I am not supporting a utilitarian basis for intellectual property either. Utilitarianism would base policy on aggregating the interests of a wide range of actors beyond those of the inventor.
The plain fact is that mechanism design in this area has to be ideographic not nomothetic or a priori. It has to be based on what actually exists on the ground and the direction in which tech innovation is moving. Prior to the Eighties, a lot of innovation was done under Government sponsorship. But there was a lack of dynamism in developing and applying that tech. The same problem arose in some big Corporations where the R&D department was disconnected to marketing and product development. Disrupting the market by letting small companies- e.g. Microsoft, Apple etc- grow rapidly at the expense of both the Public sector and the moribund Conglomerate sector turned out to be a dynamite idea. The Soviets had to cry Uncle and get rid of Communism. Yet, in 1970, many thought the Soviets would be ahead in network computers. Nobody guessed that Taiwan might become a powerhouse for chip production thanks to f.d.i and licensing.
My approach overlaps with utilitarianism only to the extent that people other than inventors matter for designing intellectual property. But I am skeptical about reducing people to utilities and interests. That is one reason why I am equally critical of utilitarian theories of intellectual property. Additionally, a utilitarian justification leads to exactly the same error Dr. Oppehneimer cautioned against: technical success first, consideration of consequences second.
What is the alternative? Consideration of consequences first- i.e. an endless discussion of the cake's ingredients and proposals for how it will be divided up and then...no actual baking of anything.
Consider the following question: is technical success in developing a new product justified on utilitarian grounds?
If the product is utile- yes.
The new product is justified if aggregate utilities increase.
We don't know aggregate utilities. We only know if the thing is utile. If it is, we make a ceteris paribus assumption. But we can omit doing anything of the sort. The plain fact is if you invent a product which is shit compared to what already exists, hardly anyone will buy it. So the thing won't be produced.
The problem is that having something new is, in most instances, going to increase utility.
No. Most new stuff turns out to be shit. Some new stuff can be modified till it stops being shit. Then economies of scope and scale become available and only then does it prevail in the market.
A new item means more choices, and in a utilitarian framework, more choices are a good thing. In some rare situations, the invention might be an unalloyed bad, such as a harmful chemical.
Which may have some beneficial use. This is about product development and market research and so forth.
In other situations, there may be a mix of harms and benefits. But given the uncertainties over harms, the prospect of the new product will bias the utilitarian approach expressed by Dr. Oppenheimer. As an alternative to a rigid form of utilitarianism, I argue for a view that considers consequences in a more precise and nuanced way.
But that view is useless. Consider my own career path. Back in the Nineties, I developed a more precise and nuanced view of twerking. Sadly, instead of becoming as famous a Beyonce, I remained un-honored and unsung. Why? Because, unlike Beyonce, I'm as ugly as shit.
Arjuna is right to have his doubts, and Krishna may seem to have tunnel vision in advising Arjuna to simply follow his duty as a warrior.
Krishna is God. He has a plan for the world. Arjuna gains by playing his part in it. There is no 'tunnel vision' here.
At a later point, Krishna says that to know dharma is very very fucking difficult. Nobody knows their true duty. There is neither 'consequentialism' nor 'deontology' here. There is just an admonition to worship God and to adopt an austere type of piety which involves detachment from the 'fruits' of action. Live like a monk and concentrate your mind only on God. That's the message of the Gita. It isn't some lame shit Sen plucked out of his ass.
Reconciling Arjuna’s and Krishna’s positions In the remainder of this section, I address how to reconcile Arjuna’s positions with Krishna’s. My answer serves as the basis for understanding intellectual property presented in section two. Following one’s duty and basing actions on consequences are not mutually exclusive. The positions of Krishna and Arjuna reflect the two different notions of justice (niti and nyaya) discussed earlier. Niti is justice as organizational propriety and behavioral correctness. It entails acting on rules for proper action at any cost.
Nope. Niti is policy. It entails doing evil shit- e.g. lying that your Guru's son has been killed so your Guru becomes demoralized, or killing your enemy when he is trying to repair his chariot- but that's cool provided that's what God wants you to do. But only God knows if this is so. Ultimately, Salvation is the Lord's gratuitous gift. Vaishnava Theism is exactly the same as Augustinian or Islamic theism. God matters, Philosophy does not.
Krishna illustrates niti when he urges Arjuna to perform his duty for its own sake.
But Krishna admits that Arjuna can choose a different 'niti'. Instead of being a soldier, he can- like Krishna's elder brother- walk away from the conflict and take up agriculture. Alternatively, he can become a monk. Krishna himself has the epithet- 'the one who flees the battlefield'. Only if Arjuna wants to be an 'agent' not a 'principal' should he do what Krishna says. But that is precisely what Arjuna wants! He desires to know and obey the 'Lord of Yoga'. Since God loves Arjuna, he gets this outcome- but it is a gratuitous gift of the Lord.
Arjuna’s consequentialist position is also an example of niti as he seeks the correct act in order to reach the correct result.
No. Arjuna can't be a consequentialist because he is a Theist. He does not want 'salvation by works' but 'salvation by Grace' which is wholly gratuitous. Love is like that only. Rama does not want Sita to give him hugs and kisses just because he defeated Ravana. He wants her to give him hugs and kisses due to she lurves him and likes giving him kisses.
Nyaya, on the other hand, is justice as a comprehensive sense of the good.
No it isn't. Hindus associate Nyaya with Yama- the King of the Dead. Life is Yami or Yamuna. We don't want Justice, which is what you get after death, we want Life on a more ample basis. Hinduism has no 'comprehensive sense of the good' because none exists. What is good when you are young isn't what is good when you are old. Be a student in boyhood and adolescence. Be a householder when in the prime of your life. Retire to the forest as you get old. Finally renounce all ties and become a wandering mendicant. One may say 'Moksha' or 'Liberation from the wheel of rebirth' is the ultimate good. But Theists say that they would prefer to be reborn in a humble capacity to serve the Lord.
It includes not only good results but also good means, it allows for options outside of rules for proper action if such options themselves are beneficial. Nyaya is more flexible than niti in the conception of justice and, according to Sen, is more attuned to actual institutions and experiences of human lives.
Sen is a cretin. Hindus say, 'don't go to Court. Make a discretionary arrangement.' Justice can wait till you are dead. But, finding God, by Divine Grace, you are removed from the Kingdom of Death. Christianity has exactly the same idea. Cleaving to Christ, or Krishna, Death is depassed.
Justice as nyaya is attuned to the context within which people must live and act. Both Arjuna and Krishna espouse positions that reflect justice as nyaya.
No. Krishna is God. He is going to save some horrible sinners by his gratuitous gift of Grace. God is not constrained to any Human notion of Justice. Indeed, theists believe God's Justice is Mercy and Forgiveness. From time to time, Mummy says 'naughty baby'. But Mummy gives baby plenty of kisses and baby chortles with delight.
As Gandhi emphasizes in the introduction to his translation of the Gita, Krishna advocates not only for the right action, but also for the right reason.
Gandhi told Gujarati peasants that they had a duty to go die in battle first for the King Emperor and then for the Turkish Caliph. They told him to fuck off. Say what you like, Gujaratis are a sensible people.
In the battle against the Kauravas, Arjuna is correcting an injustice (the deceit of his cousins in appropriating the land).
No he isn't. He is fulfilling God's plan which is also that of his true eldest brother. The fact is, if Karna reveals his true parentage, then he is the head of the Pandavas. He can make any deal he likes with his pal Duryodhana. But Karna wants the battle to go ahead so that a lot of illustrious warriors can get to Heaven by being slain in honorable combat.
Ghosh gasses on in Sen-tentious vein till he gets to the meat of his article- which turns out not to be meat but shit-
...two practical aspects of intellectual property law and policy. The first pertains to political activism and intellectual property;
Political activism is shit. India fucked up by demanding TRIPs waivers on ideological grounds. They had to compromise because it was obvious that the existing regime was better. There would have been no voluntary licensing such as helped India greatly during COVID had the Indian position been previously enshrined in law.
the second, to intellectual property law reform. One idea to draw from the discussion of Hindu law in section one is the concept of action which contrasts starkly with the labor that underlies intellectual property.
Hindus had the same concept of action as everybody else. What Sen calls action is shitting higher than your arsehole.
Drawing on John Locke, many theorists of intellectual property see labor as a form of appropriation. A person acts upon the material world and appropriates things as property in order to obtain value from the ownership. In the Gita, particularly Krishna’s concept of action without consideration of reward, labor is not a form of appropriation, but a form of service.
This is foolish. 'Appropriation' here is the Greek concept of 'Oikeiosis' as developed by the Stoics. But this is a type of 'natural' belonging which can broaden into something universal and cosmopolitan. How? Well if you feel you 'naturally' belong to Christ, or Krishna, then you are uninterested in the rewards you get. You consider yourself bound to serve the Lord more and more. You may end up giving away all your possessions and living like a monk. Sen was an atheist. He couldn't admit this. He thought there was some stupid philosophical debate even though the Mahabharata explicitly says there was no such thing. Why? Arjuna was a meathead. Nice guy, but not big in the brains department. Krishna was hella smart but even he could not explain what dharma is because the thing is too complicated for mortal understanding.
One acts not to capture value, but to serve.
If you belong, heart and soul, to the Creator who is also your Personal Lord God and Savior- sure. The bliss gained by the Theist from knowing she loves and is loved unconditionally by the all Merciful and all Provident, is qualitatively different from the sour gnosis of the philosophers or T.S Eliot's sad, masturbatory, shite.
Service may also be the product of seeking fruits and benefits. But that is a question of whether to act according to consequences (like Arjuna), or without regard for results (like Krishna). Action under Hindu law is within dharma, based on one’s relationship to the world and to others. But these relationships can be complex. In this section, I address two situations. The first regards action in a political context; the second regards action within the ethical order against which intellectual property arises. Through these examples, I illus trate
the great stupidity of the deracinated Indian atheist or virtue signaller.
the arguments of section one about consequentialism and the implications for right action.
We know the consequence of Sen-tentious shite. Everybody involved has their time wasted. This is cool if you are a low IQ Bengali academo-bureacrat. It isn't cool, if you don't want to fucking die from COVID or whatever.
A. Intellectual Property Civil Disobedience Protest against the strengthening of intellectual property laws at the expense of users arises from many sources.
But the onus is on property owners to safeguard their own property. Approaching the court costs money and enforcing judgments costs even more money. Thus Coase's theorem prevails. Who owns what doesn't matter too much provided there is enough freedom to contract and economic mechanisms are well enough developed.
Computer programmers, often labeled as hackers, expose flaws in encryption that restrict access to code. Even a cursory search on sites like YouTube reveals anonymous posters challenging copyright laws through uploads of copyrighted works. Aaron Swartz, computer programmer and internet activist, was driven to suicide in 2013 after being charged with violations of federal wire fraud statutes and the Computer Fraud and Abuse Act for downloading proprietary scholarly articles from the JSTOR database at MIT. His final act was a comment on the injustice of privatizing scientific research and knowledge through criminal laws. Such acts are reminiscent of the self-immolation of Buddhist monks in Southeast Asia in the 1960s.
Ten years later, we see that the cost of enforcement has led intellectual property owners to develop a variety of strategies such that, over all, access to information has increased. But this would have happened anyway even without any fucking 'self-immolation'. BTW, Buddhist monks in Vietnam etc. slit their own throats by paving the way for Communist rule. Ghosh is a cretin.
These civil protests also parallel the strategies of Martin Luther King, Jr., who emulated the methods Gandhi used in South Africa in the 1900s and during the Indian independence movement of the 1920s and 1930s.
Fuck off! Gandhi represented the vast majority of Indians. He could have forced the Brits to do Provincial Autonomy in 1922! His genius was to appear to be anti-British while actually enabling them to stay on- that too on their own terms. Dr. King may have been going in a Socialist direction when he was assassinated. The truth is, he too, was useful to the Federal Government which wanted to get rid of Jim Crown for both National Security and Industrial efficiency reasons.
Gandhi, in turn, was inspired by the Gita,
No. Everybody was writing commentaries on the Gita while in Jail. Gandhi was merely copying Tilak and Aurobindo and so forth. Indeed, Yeats and Isherwood and Auden too got in on that racket. However, unlike Simone and Andrei Weil, Gandhi could not read Sanskrit. Also, he was as stupid as shit. Still, he kept the Brits around for another 25 years so maybe Indians should be grateful to the maha-crackpot.
and this connection demonstrates how the ethical system of the ancient text framed in the debate between Arjuna and Krishna provides the foundation for modern civil disobedience, whether for civil rights or for intellectual property limitations.
Or for Blasphemy laws or anti-abortion laws or to prevent Congress certifying the Presidential election. Civil disobedience can be for any crazy shit. Most of the time, it is for subsidized petrol and food and other stuff which will fuck up the economy pretty damn soon. However, where free elections are held, there is less and less need for this type of stupidity. Why? People can vote for guys who will appoint Judges who will reverse Roe v Wade and uphold the right to carry concealed weapons.
Of course, protest movements take many forms and have many sources other than Gandhi and the Gita. I do not want to oversimplify a rich and variegated history. But civil disobedience provides a stirring illustration of the refined consequentialism coming out of the dialect between Arjuna and Krishna. Gandhi’s campaign of non-violence was based on the ethical system of the Gita. Of central importance to Gandhi was action without attachment to ends. Lack of attachment did not mean indifference to result or to consequences. Instead, Gandhi was following Krishna’s instruction to Arjuna—right action according to one’s duty. By engaging in civil disobedience, whether by evading the salt tax or protesting against the British government, Gandhi was attempting to expose the injustice of laws.
He failed. India still has a salt tax.
The acts of disproportionate violence by the state in response to passive resistance to unjust laws exposes the injustice.
Unless it stamps out that nuisance completely, in which case it gets re-elected.
The confrontation and conflict has its own consequentialist logic. Violently suppressing passive and morally strong protestors reveals the power of the state against the moral will of its citizens challenging unjust laws.
The alternative is to give the protestors enough rope to hang themselves. Once they start babbling about 'defunding the police' and removing immigration barriers, there will be a bigger popular backlash. Ultimately, Dr. King helped the Republicans craft a 'Southern Strategy' which revived their flagging fortunes.
In a discussion of rights, however understood, Gandhi’s strategy can readily be characterized as a means of securing individual rights.
No. That was Sapru's strategy. He was a Liberal. Gandhi wasn't.
But that interpretation would be misguided. For Gandhi, the issue was not individual rights, but the exposure of an unjust system.
But that injustice arose out of the fact that Indians were utterly shit when compared to Whites. Gandhi repeatedly demanded that the Brits hand over control of the Indian Army to the Indian National Congress. Why? In 1939, he clarified this in a newspaper article. ' Consider for one moment what can happen if the English were to withdraw all of a sudden and there was no foreign usurper to rule.
It may be said that the Punjabis, be they Muslims, Sikhs or others, will overrun India. It is highly likely that the Gurkhas will throw in their lot with the Punjabis. Assume further that non-Punjabi Muslims will make common cause with the Punjabis. Where will the Congressmen composed chiefly of Hindus be? If they are still truly non-violent, they will be left unmolested by the warriors.
In other words, Muslims and Punjabis will rule the country. They will take all the nice houses and good land. They may not anally rape Congressmen because of Ahimsa magic. But that's the only silver lining in this scenario.
Obviously, Gandhi was telling porkies. There were plenty of Hindu martial castes- Marathas, Coorgis, Garwhalis etc, etc. Still, his point was that Congress, if wanted to remain Gandhian, needed the Brits to stick around. Only if the Brits handed over the Army (which they couldn't because of the large number of Muslims and Sikhs in it) to the Hindu INC, would it be safe for the High Castes to say goodbye to the Brits. Still, three years later, when Gandhi thought the Japs would win, he did tell the Brits to fuck off so he and his pals could concentrate on sucking up to their new masters.
Once the injustice is exposed, forces are set in motion to uproot and replace it with new institutions. Action leads to results, but the action must be pure and not motivated by consequences.
Very true. Stupid shit tends not to be 'motivated by consequences'. The purest action consists of taking off all your clothes and shoving a radish up your bum and then running around screaming hysterically. The consequences may be dire, but the action is very pure indeed- right?
Instead, the purity of the protestor contrasts with the purposeful suppression of the state.
Police are making me wear clothes! Also they are pulling radish out of my bum! Waaaaaaanh!
Nonattachment to consequences, including the securing of rights, is what keeps the protestors pure as they are mindful only of the right, just action.
Which turns out to be wholly counter-productive.
But it is impossible to remain pure, especially in the political realm. Gandhi himself was criticized for his tactics. He was accused of being too personal in his outlook and approaches. As the poet Sarojani Naidu quipped, India had to spend much money to keep Gandhi in poverty. What she meant was that Gandhi’s nonattachment to rights would sacrifice engagement in interest politics. Consequently, his approach created a rift with the Muslim minority on the subcontinent, sparking the division that lead to the partition into India and Pakistan upon independence in 1947. Gandhi was also resistant to special set-asides and programs for the untouchable caste, again causing splits within the independence movement.42 These examples illustrate the difficulty of being pure in action. They also raise the question of whether interest groups politics and rights talk can so readily be ignored through passive resistance. Even worse is the possibility that Gandhi’s methods had its own majoritarian biases.
No shit, Sherlock! Muslims object to Hindu stupidity just as Hindus object to Muslim craziness. But when peeps aint being stupid or kray kray, they work well enough together.
Civil disobedience to intellectual property law follows in Gandhi’s wake.
It is shit. What works is people ignoring the law which in turn means that the industry has to find some better mechanism to protect revenue. Speaking generally, the best outcome is a sort of price discrimination by quality which itself has other benefits- e.g. better encryption and security against viruses, phishing etc.
With the internet as a battleground, activists pursue the goals of free code and open access without any of Arjuna’s hesitancy.
Because the Gita is irrelevant.
The need to act without attachment to individual reward and with a belief in the truth of one’s action drives scholars, programmers, and attorneys to preserve internet governance from corporate control and proprietary ownership.
This is foolish. You get even better action if people can gain celebrity and material rewards in this manner.
Battles continue in cyberspace, in legislatures, and in the courts. Professor Lawrence Lessig,
who gained enough celebrity to make a bid for the Democratic nomination for the 2016 Presidential election.
a staunch advocate for copyright reform in the 1990s and 2000s, shifted his focus to reform of Congress and the legislative process, the root cause of excessive intellectual property legislation. Civil disobedience against intellectual property targets the unrelenting use of state power to quash individual freedom.
No. Peeps pirating shit forces Companies to forget about legislation and focus of segmenting the market as economic theory dictates.
However, contemporary civil disobedience is subject to the same criticism as was aimed at Gandhi.
It is stooooooopid. Also virtue signallers are soon displaced by 'woke nutjobs' who start demanding that penises should be banned. Also, why are white peeps so fucking white? The least they could do is have black stripes- like zebras.
By suppressing attachment to private interest and emphasizing freedom and the public domain, the resistance ignores some of the virtues of intellectual property ownership, particularly among the economically and politically excluded. This tension appears in the conflict between the so-called hacker community in developed countries
The hacker community is useful to I.T in the same manner that burglars are useful to the locksmith and home security industry. Neither may be prosecuted for each offense though at some point some burglars and some hackers may do a bit of jail time at which point they ask for a few hundred or thousand offenses to be taken into account. There may have been a time when people thought that thieves could get burglary legalized or that hacktivists could get intellectual property abolished, but those days are long gone.
and traditional knowledge holders in developing countries.
Who aren't thieves or hackers. Why the fuck is Ghosh comparing law abiding people to criminals?
The former seek the minimization, if not the elimination, of intellectual property rights,
No they don't. One or two may say they do but the rest make their living, or get their thrills, because what they do is illegal. Otherwise, the service would be supplied by a Corporation.
while the latter values intellectual property rights in individual creators and communities. At stake is the use of property rights to suppress liberty in opposition to the recognition of property rights to secure equality and economic advantage. On a broader scale are the differing views of intellectual property rights in developed and developing countries. As with the debate over partition of the subcontinent, stakeholders are diverse and differ in commitments to legal rights. Advocates for strong intellectual property protection to support artists and creators ignore that most intellectual property are owned by publishers and others who commercialize intellectual property for their own benefit rather than the benefit of creators. Advocates for greater user rights or access ignore how products and services protected by intellectual property are created. Defenders of user rights in the developed world ignore how intellectual property might benefit rights holders in the developing world. These often conflicting interests reflect deeper distribution questions that intellectual property may not be able to alleviate. While civil disobedience can be uncompromising, it can also be energizing. It is this spiritual and moral energy that Krishna seeks to unleash.
No. Krishna is God. He creates and sustains and destroys the Universe. He is not interested in unleashing stupid shit. I'm not saying Civil Disobedience mightn't be cool if you yourself aren't at all or can't afford to get drunk. But the thing is a nuisance. There are many ways to get the laws changed. Civil Disobedience is the worst.
In Mayo v. Prometheus, the Supreme Court addressed the question of whether a medical diagnostic method is patentable subject matter. The Court ruled against Prometheus, the patent owner, holding that the diagnostic method at issue covered an unpatentable law of nature.48 In reaching this ruling, the Court looked to the consequences of patenting medical diagnoses and treatment on the decisions and actions of medical professionals. Justice Breyer’s opinion, for a unanimous court, illustrates two points from my argument.
No. As in Gottschalk v Benson, the ratio illustrated only one point- neither an algorithm nor a 'law of nature' could be patentable. There must be a particular, inventive, application.
First, the Court does not emphasize the primacy of the patent owner’s interests, which would support a very broad conception of patentable subject matter.
This is irrelevant. You simply can't patent laws of nature.
Instead, the Court recognizes limits on patent ownership.
No. It says somethings can't be patented.
The nature of this limitation illustrates my second point. By identifying the consequences of broad patent rights,
It made no such identification. It merely upheld the law. Somethings can't be patented.
the Court ruled that these consequences would justify a narrowing of patentable subject matter.
No. Only if there was something added to laws could there be a property right. The Judge was not looking at 'consequences' at all. It may be that if such rights were granted the petitioner's Mummy would recover amnesia and reveal the secret of Montezuma's treasure. This in turn would have the consequence that Putin would become a hedgehog. Sadly, judges- like the rest of us, don't know the consequences that will follow from anything. But they can go by existing rules.
Although couched in the legal category of “law of nature,” the limitation as reflected in the Court’s reasoning builds on specific relations and agencies.
There is no mention of any such 'relations' and 'agencies'. Why not say the Court's reasoning builds on specific fairies and elves?
In short, the rights of the patent owner hinder the duty of the medical practitioner.
This is irrelevant. The judgment is not concerned with a particular practitioner. Nor is it concerned with policy. The judgment says ' We need not determine here whether,
from a policy perspective, increased protection for discoveries of diagnostic laws of nature is desirable'. Let the Legislature decide on Policy issues.
To avoid this conflict, the Court created an exception to the rights of the patent owner.
No. The patent owner didn't own shit because a law of nature can't be anybody's property.
The analysis in Prometheus goes beyond identifying juridical binary relationships of rights and duties. Implicit is a duty not to interfere with the duties of others.
Nonsense! Every duty explicitly requires one to interfere with the duties of thieves or gangsters or business rivals or whatever. Ghosh is talking utter nonsense.
But I am less interested in these formal juridical pairings than in the Court’s identification of the important consequences of its decision. The Court’s reasoning demonstrates a useful style of consequentialism.
It is deontological. The consequences of my owning the law of gravity may be good. But there is a rule that laws of nature can't be anybody's property. That's why I can't be declared the owner of the thing even if everybody believes I'd use my proprietary powers only for good.
Many critics of Prometheus’ patent on diagnosing and treating Crohn’s disease emphasized the harmful effects on patients and medical costs.
Critics don't matter. The Law clearly said that Laws of nature can't be patented. Prometheus made a complicated argument that they had added something 'inventive'. The Court disagreed.
The Court, however, did not take this tack. Medical practitioners, and not patients, were the immediate focus for the Court. Knowledge of the patent would inhibit the ability of the medical professionals to communicate with patients and carry out their duties to treat and heal. Consequences matter but are cabined by the set of relationships implicated by the invention.
Ghose is lying. The ratio was that a law of nature can't be patented. Even if you were the first to discover it, you didn't invent it. You can't patent it because anybody else could discover it for themselves.
The Prometheus case raises a challenge to the position of Krishna the charioteer.
Who reveals himself as the Creator and Sustainer and Destroyer of the Universe as well as every theists Personal Lord God and Savior. Nothing like this happens in any legal case. The Judge does not suddenly reveal that his 'Cosmic form' (visvarupa) is bigger than the Universe.
Do one’s duty, even as an inventor and patentee,
There is no duty associated with being an inventor per se. A patentee may have certain legal duties or a procedural sort but the patent may not itself be legal.
but what if one’s duty conflicts with the obligations of others?
Stand your ground. It's what you get paid to do. The other guy is welcome to go get a court order.
To answer this question, one has to turn to Arjuna’s self-questioning to identify the scope of consequences and limits on duty. The guiding principle I advocate is one of recognizing the consequences of intellectual property rights for the duties of third parties, such as health care providers and medical practitioners.
The onus is on the rights holder to protect them. If he sleeps on his rights he loses them. Health care providers and Doctors and so forth may, as a matter of prudence, need to take account of the property rights of others but what is involved is a tort, not a crime. Indeed, that same requirement of prudence may cause them to challenge the patent in question because there may be a fiduciary duty not to pay for something, or not to do something, because of cowardice or lethargy in this regard.
I will present two further examples that illustrate additional third parties that are affected by intellectual property rights. The first example comes from the fair use doctrine in copyright. The second addresses the first sale doctrine, a limitation on intellectual property rights arising under copyright, patent, and trademark laws. Both doctrines are relevant because of the debates they foster about rights. Courts have been very careful in not calling “fair use” a right of users. Instead, judges adopt the formal designation of the fair use “defense.”
It is a Hohfelidan incident or immunity. To speak of a right is to suggest that the thing can be alienated for consideration. It is not the case that I can get a publisher to pay me off by threatening to use a supposed 'fair use' right.
Analogously, courts do not treat first sale as a right to resell or redistribute a copyrighted (or patented or trademarked) work, but as a limitation on intellectual property arising from competition policy. Behind these formal designations is a focus on consequentialism.
No. This is a careful discrimination of Hohfeldian incidents. There is nothing 'consequentialist' about it. On the other hand, Competition Policy can be 'consequentialist'. But Property Law can't save by express stipulation (e.g a 'public interest' provision in the relevant deed or statute).
The nuanced consequentialism espoused in this article can serve as a model for reforming these two controversial areas of law. Under current application, fair use in copyright suffers for emphasizing the primacy of the copyright owner’s rights to commercially exploit the copyrighted work.
This is based on Hohfeldian incidents. J.K Rowling owns Harry Potter. I can't make money of Harry Potter without paying her off. But I can enjoy sexual or aesthetic or intellectual pleasure from her work. Suppose I am inspired by something in Rowling's books to invent something really cool. Can Rowling make me pay her for having inspired me? No. I've added something 'inventive'. I paid to read her book and then something happened in my brain which is my property not hers. Rowling herself may have been inspired by tales which are out of copyright. Even if something is within copyright, Rowling's mind is so inventive that it is unlikely that there has been any intellectual property infringement. Equally, it would be difficult to make money plagiarizing Rowling because it is precisely her inventiveness which none can duplicate.
The challenge for the fair use doctrine is to delineate limitations on copyright that take into consideration the consequences of enforcing the rights of owners. As illustrated in the Prometheus opinion, attention to relations and agencies of other actors is desirable.
No. Just look at the 'Hohfeldian incidents'. Clearly when reading a book, what goes on in the reader's mind is nobody's property but his own. If that mind is 'inventive' then new property may be created- e.g. a book. Even if there is a 'scenes a faire' resemblance between this new book and what the author read, there is no property infringement.
The first sale doctrine, as applied, is perhaps more attuned to the type of consequentialism I am advocating in this article.
Why? Because of Competition policy implications. Competition law, in the US, has become more 'consequentialist'. In this case, Hohfeldian incidents have changed. However they remain the proper tool of analysis. One reason for this is that Econ theory can build on a Hohfeldian structure. It can't on Sen-tentious shite.
Ghosh mentions Kirtsaeng v Wiley- a Thai national started selling exported textbooks back in the US market and the publisher sued him. The issue was 'international exhaustion'- i.e. does first sale apply to international sales? One argument is that poor countries should pay less for textbooks- i.e. price discrimination here is in the public interest. The Supreme Court upheld 'first sale' in Kirtsaeng. The issue is whether 'price discrimination', which would be per se illegal, should not be given a 'public interest' exemption.
I propose that courts need to start with a consideration of consequences to determine whether the first sale doctrine provides a relevant defense.
Economists don't know the consequences. They can merely make a guess. Wiley did raise the price of international editions. Did this hurt Thai or Indian or other less affluent country students? Probably not, because a better alternative was found by the market. But, when it comes to 'dynamic effects', we'd have to wait for another decade to evaluate consequences.
A consequentialist approach was the method in early first sale doctrine cases in the nineteenth and twentieth centuries.
No. It was deontological- i.e. rule based. However, during the Thirties things moved in a 'Corporatist' direction. But this was 'delegated legislation' and involved 'doctrine of political question'.
The Supreme Court should start with that approach. Whether to understand civil disobedience efforts or to guide legal reform, the verbal sparring of Arjuna and Krishna provides an ethical framework from which to rethink intellectual property law.
Very true. Judge should reveal in open Court that he is actually God All Mighty.
Perhaps there are applications to legal analysis more broadly. But as this Article has shown, the strong slant of intellectual property legislation in favor of owners
Though 'Kirtsaeng' and 'Pegasus' were against owners!
and the debates over the relevance of consequences for law provides a fruitful domain for understanding the Gita and its implications for acting and decision making in the model world of control over technology and information.
This is sheer nonsense! Gita is understood by every Hindu theist or follower of Bhakti Marga. Why is this stupid fellow pretending that US jurisprudence can help us understand our own ancestral Scripture? Sen's stupidity is more infectious than COVID- at least for Bengali buddhijivi Professors in Amrika.
III. CONCLUSION A central battle underlying intellectual property policy is that between utilitarian and deontic foundations for intellectual property rights.
No. Hohfeldian incidents as modified by Competition policy considerations define this sphere.
Utilitarian foundations emphasize the balance of competing interests under a broad umbrella of benefits and costs.
This is important for 'Policy' which in turn determines Legislation. This comes under the rubric of 'political question'.
Deontic foundations, by contrast, emphasize certain interests as being primary.
Hohfeldian incidents specify rights, immunities, obligations etc. These are legal not 'deontic' notions. Why? There is no duty which prevents you 'sleeping on your rights'. If you do so, nobody has a superior duty to do your job for you. Jo sovath hai, so kovath hai- those who sleep, lose. This is 'laches' as a defense. But defenses only need to be deployed if the thing winds up in Court.
,,,I have made the case in this article for a consequentialist approach to intellectual property,
But we don't know the fucking consequences! We don't even know all the possible states of the world. Knightian Uncertainty obtains. Sen-tentious shite has no 'stopping rule'- i.e. its arguments are interminable. In other words, 'consequences' can only be known at the end of Mathematical Time (which may not exist)! Thus what this guy is really saying is no judgments should ever be made!
one that requires a decision maker, whether court or legislature, to assess the effects of different rules and policies on society.
Why not say, 'Judges should be able to read not just the mind of everybody, but also have a thorough knowledge of their hearts and the trajectory of their soul. Also they should have perfect knowledge of the Past and the Future.' Indeed, during every Court case, the Judge should show himself to be the Creator, Sustainer, and Destroyer of the Universe. After all, that's what Krishna does in the Gita.
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