Slashdot Mirror
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?"
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.
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.
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?
I'm quite fond of stoned girls who aren't virgins.
All those moments will be lost in time, like tears in rain.
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.
Better to be despised for too anxious apprehensions, than ruined by too confident a security. --Edmund Burke
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
Typical secular left opinion.
Since fetuses and corporations are people, they should be allowed to duel, too.
You are welcome on my lawn.