news you can use

The Brain Thieves
The FTC's Suit Against Intel Is an Attempt to Steal Intellectual Property
By Robert S. Getman
Horror movies terrify us with nightmarish plots in which aliens take over humans' brains and thus enslave their bodies. Today, Intel Corporation is a victim of just such a nightmare ­ with the Federal Trade Commission cast as the real-life brain thief.˛

The FTC claims that because Intel is the dominant˛ manufacturer of personal computer CPU's (the computer's brain˛), the company must be forced to give actual and would-be competitors a fair˛ share of its patented technology and know-how. Intel is being compelled to give away what it has created ­ its brainchild ­ because the other companies are needy. The FTC's position is tantamount to this: the more that competitors need Intel's technology, the less Intel owns it.

What is the FTC's legal weapon in this case? It is an obscure antitrust concept, the essential facilities˛ doctrine, which holds that if so-called monopolists produce something supposedly unique or essential,˛ it will effectively be declared public property, to which all comers must be given access. As unjust as this doctrine is (and our courts have rarely invoked it), it is particularly inappropriate as applied to patents ­ intellectual property established by our Constitution ­ which by their nature are meant to confer a monopoly,˛ in order to recognize an owner's exclusive right to his invention and thereby do him justice.

Yet even the FTC doesn't claim that Intel's market dominance˛ was attained by force or fraud; it simply argues that Intel is too successful at inventing technology that is in great demand by customers. When not referring to coercive, government-sheltered franchises, the term monopoly˛ boils down to: success in a free market. For this sin˛ of success, says the FTC, Intel must be made to sacrifice. It must be forced to share its creations with any have-not, on the FTC's terms. Indeed, the FTC even declares that if sued by its competitors, Intel cannot treat them less favorably than before ­ which means that the government is seeking to establish in law the tenet of turning the other cheek.

There are few starker examples than this lawsuit of our legal system's adoption of Marx's slogan From each according to his ability, to each according to his need.˛ Yet Americans would certainly oppose Thomas Edison's being hobbled for over-invention.˛ We would never support cutting Edison's patent rights on his lightbulb ­ because it is so essential˛ ­ at the urging of gaslight-makers. Surely, it isn't part of the American Dream˛ that too much success is a sin, or that a government agency is morally entitled to prosecute those it deems guilty of that sin. Such egalitarian leveling poisons the pursuit of happiness˛ which lies at the heart of that dream. Worse, because antitrust prevents our most successful producers from acting to maintain (let alone enhance) their monopolies,˛ we are forcing them to destroy their own achievements.

The evils of antitrust law are magnified enormously by its deliberate ambiguity. Most people do not realize the virtually unlimited powers government grabs as a result of the law's failure to precisely define unlawful conduct. As Alan Greenspan wrote, antitrust is a world in which the law is so vague that businessmen have no way of knowing whether specific actions will be declared illegal until they hear the judge's verdict ' after the fact.˛

Crucial terms like unfair competition˛ and monopolist˛ are kept vague on purpose, to accommodate the government's demand that antitrust law be elastic.˛ This subjectivity empowers the state to find almost any thriving business guilty of an antitrust infraction ­ and makes antitrust laws incompatible with the principles of a free society. (Such laws flagrantly violate our Constitution, under which ex post facto, or retroactive, punishments are barred and undefined laws are ruled void for vagueness.˛) The FTC's attempted brain theft imperils not just Intel, but anyone with proprietary knowledge or intellectual property. It threatens anyone who has ambition enough to enjoy too much˛ success. We must awake from this legal nightmare. In the name of whatever ambition you hold dear, urge lawmakers to revoke the FTC's antitrust powers and to reject its cynical strategy to have the producers and eat them too.˛ Else the next brain the bureaucrats steal ­ if you're productive and successful ­ could be yours.

Design copyright Scars Publications and Design. Copyright of individual pieces remain with the author. All rights reserved. No material may be reprinted without express permission from the author.

Problems with this page? Then deal with it...