Champerty and Other Common Law We Could Use Today

pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"

Comments

No, no, no.

[Jurily]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

What next? Stoning girls because they weren't virgins on their wedding?

Re:No, no, no.

[Calinous]

Those laws were applicable in the 1916.
      As for the reasoning behind those laws, remember that the judicial system is paid from the country's budget, not by the legal taxes - so, indirectly, you pay for every case that goes to the judge. And, because of those lots and lots of cases that drag for a long time, your own case might take months and months or years and years.

Re:No, no, no.

[BlackHawk-666]

I'm quite fond of stoned girls who aren't virgins.

Re:No, no, no.

[Capsaicin]

What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

No what got us into this mess in the first place was not applying tried and true law, but instead being stampeded into enacting new law because "oooooh it's the internet ... we need neeewwwww laws (that'll make a motza for the people I work for)." Take copyright and other so-called IP law back 25-50 years and we'd be in a much better position.

That being said, the issues surrounding maintainance and champerty (which makes working on a contingency fee basis impossible) are a little more complicated. In my jurisdiction (NSW.au) these were still torts until 1993 when the Maitainance, Champerty and Barratry Abolition Act 1993 (NSW), was passed. Until then it was difficult for ordinary people to defend their legal rights as the cost of litigation (the ultimate threat) would be prohibitive. So these torts acted in a highly anti-democratic fashion.

OTOH after the Act was passed the amount if litigation obviously increased. And it increased to the point where it was felt necessary to curtail the remedies available to individuals (via the Civil Liability Act 2002 (NSW)). So the abolition of these torts ultimately acted to reduce an individual's rights. Also it made lawyers unpopular as happens when a people becomes more litigious.

Difficult.

Re:No, no, no.

[Anonymous Coward]

I agree. What the article fails to mention is why these principles have fallen by the wayside.
1) Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state. As is clear even from the wording of the law, it wasn't designed to uphold justice, the nod at the end notwithstanding, but to keep things quiet, which was in the best interest of the king. Nowadays, in a state ruled by representatives of the citizenry for the citizenry, rather than by the king for the king, the principle of barratry has no place.
2) Maintenance (and thus champetry) makes it impossible for charities to for example support people who are in a protracted legal battle with an organisation with much deeper pockets. Again, we can see that this is a very useful law for the aristocracy but not for the common people.
Both these principles were from a time when the single purpose of the law was to enforce stability, and where it served justice, it only did so as a means to that end. Although vestiges of that past are still visible in our laws today, the current attitude is that the law should provide justice and protection to the citizenry. If there are laws that don't serve this end* they should be changed or abolished.
*Previously on Slashdot:
UK Censorship: Demonic Consequences
In the UK, a Few Tweets Restore Freedom of Speech
A New Libel Defense In Canada; For Blogs Too
In Britain, Better Not Call It Bogus Science
And you can help make the world a better place: Libel Reform Campaign

Re:No, no, no.

[cthugha]

Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.

I'm not sure of the precise historical reasons for the abolition of these torts in New South Wales, but I note that they also create difficulties for types of litigation funding that are considered legitimate, e.g. funding by public interest groups or unions. IIRC, union lobbying was behind much of the Victorian Wrongs Act, which (in its original form) abolished maintenance and champerty in that State as well as making a whole load of other changes in relation to civil liability for negligence and personal injury.

Re:No, no, no.

[hey!]

You voice my objections to the article better than I could.

That said, what we are talking about is a phenomenon where the abolition of one class of legal abuse tends to lead to another, new class of abuse. As long as there is law and there are people with money interested in subverting the law for their own purposes, you'll have new abuses dreamed up by creative and unscrupulous lawyers.

So this is not a matter of getting the law right, but keeping up with the development of novel abuses.

We needn't resurrect the doctrine of champetry wholesale as it existed a century ago to address the most flagrantly abusive forms of maintenance. The problem with champetry is that it assumes that because contingency fees create an incentive to maintain frivolous lawsuits, that any lawsuit undertaken by a lawyer with a contingency fee is necessarily frivolous. That's only true if we assume that substantive lawsuits are brought exclusively by gentleman of means.

The real problem is not the fee arrangements, but the use of law to obtain plaintiffs privileges beyond what the law grants them. It is the use of the law to undermine the rational basis of the law.

So the point the article makes is better than it appears. Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

The patent system exists for aiding innovation

[Anonymous Coward]

The patent system is for one thing only. To aid innovation.

If the patent system doesn't aid innovation it fails its own raison d'être.
If a part of the patent system doesn't aid innovation that part fails and should be removed.

Re:The patent system exists for aiding innovation

[starbugs]

Software patents stifle innovation.
Yet they are still around.

Many of us hate software patents. (myself included).
They limit what we can do, so we have to find innovative ways to avoid them.
Meanwhile we are happy when some large companies get bitten by patents.

Besides litigation, how do software patents benefit their holders?

Re:The patent system exists for aiding innovation

[delinear]

In this case the innovation involves a lot of waste effort circumventing overly restrictive legal practice when it could instead be innovation which benefits everyone directly.

Re:The patent system exists for aiding innovation

[edittard]

The resources you spend on unnecessary innovation - working round the patent - could be spent on useful innovation - creating something new or better.

Lets not pussyfoot around

[Anonymous Coward]

Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it. They will inevitably be removed. The only question is: How long will we wait?

Re:Lets not pussyfoot around

[starbugs]

Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it.

Hmmmm...

The disclosure requirement lies at the heart and origin of patent law. A state or government grants an inventor, or the inventor's assignee, a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.

src

So the idea of patents was so that there would be fewer trade secrets. At least that was before information traveled at the speed of light.

The Problem Discussed Lies With The USPTO

[cmholm]

mr_matticus closed by saying: But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

I'll agree that the parent post may have been going a bit over the top. So, I'll attempt to focus on some specific issues:

1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work. Hence, the icon for many of the /. patent-related stories.

2) Holding Patents: The original intent of the framers when setting up patent law was that inventors enjoy a limited window of time to enjoy the fruits of their inventions via a monopoly granted by the state. IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

Pray tell, what does it gain society to permit a business whose sole purpose is to quietly sit on patents in the hope that they don't turn up during a patent search, waiting to jump on the next goat who makes an actual product that might conceivably infringe? This business method is aided and abetted by 1).

Re:Sure, but no reason to be sexist

[AliasMarlowe]

For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

With a bonus extra stoning, if anyone says "Jehovah" during the show, or if a stone-thrower's beard falls off.

Re:your big chancego on then, write that law

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Barratry

[DynaSoar]

Barratry is alive and well, in both federal and many state judicial systems:

http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/
http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/
http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king

In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.

Re:Trial By Combat!

[PopeRatzo]

I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18

Typical secular left opinion.

Since fetuses and corporations are people, they should be allowed to duel, too.

Re:Trial By Combat!

[plover]

I shall ready the trebuchet!

Then I shall fetch thee a lawyer, that thou may'st have ammunition.