the new privateer navy in service of leviathan and leviathan's cronies
private property is the bedrock of the idea of free people, free markets, and rights based republics: homes, castles, livelihoods.
and so we are justly outraged by ideas of involuntary takings.
but the fact is that they are everywhere and generally used to advance the aim of the state and its preferred creatures at the expense of we the people.
taxation or giving a bunch of automotive unions the ability to wildly flout standard bankruptcy law because they are huge political donors is bad enough.
but ideas like “eminent domain” especially after that atrocity of a “kelo vs new london” push this far further and allow the state to take your things by force and without reason or consent beyond “we’re going to give it to someone to use for a purpose that generates more tax income.” (which is quite literally what happened in kelo and is made all the more perfectly ironic by the fact that this “better purpose” failed and never actually occurred post taking and transfer)
this is why such ideas engender such anger and why so many states passed laws preventing such kelo style crony confiscation.
but what’s going on with moderna right now is even worse.
morderna has been a full blown crony all covid. they got their IP for mRNA from the NIH and pay a royalty for it. i’m sure the federales would have some choice words for the company if it decided not to pay them. (as evidenced by the ongoing patent dispute with NIH)
and boy does that make what’s happening now one for the hypocrisy hall of fame:
moderna is being sued by two companies (arbutus and genevant) for violating/misappropriating their intellectual property (IP) and violating their patents on a set of lipid nano-particle tech to encapsulate mRNA and protect it when it’s administered to the bloodstream. this is a technology that is core to the basic function of the vaxx and without which it could not function. so it’s not some ancillary matter. this is “don’t have it, there’s no product” sort of stuff.
this would be a massive liability issue as the royalty for this could easily be 5-10% of sales and so could run to billions of dollars.
and so moderna does not want to pay.
not terribly surprising.
what’s interesting is the argument they are making. as town hall reports it’s not a denial of infringement, it’s something far more rapacious and dangerous:
Moderna's response to Arbutus and Genevant has not focused on the companies' claims, but sought to have the case dismissed entirely. Moderna says that, under a World War I-era law found in Section 1498 of U.S. Code, its vaccine development and production is shielded from patent claims because it was under contract to provide the vaccine to the federal government. Moderna maintains its COVID vaccine did not infringe on intellectual property, but said that "dispute is for later."
this, frankly, smells like a kind of bovine excrement generally described in a fashion that rhymes with “full kit.”
if you don’t infringe and the IP is clear, you’d just make that argument. this is a heavy handed full nuclear response to drag big government in and have them hammer your accuser to be sure that the merits of the case are never your problem. you don’t do that if you think the merits are on your side. you do it when you’re guilty as hell and need someone to put the fix in/duck responsibility/shift blame.
because invoking this law is NOT a good look.
quite literally, the moderna argument is “you sued the wrong party in the wrong court and you should be suing the US government because if we stole this, we stole it in their name.”
there’s clearly quite a lot of BS being flung here and moderna was actively trying to challenge these patents and render them invalid. (another interesting move if you think you don’t infringe) this was rejected by a federal appeals court in december.
predictably, “the big guy” has stepped in and is seeking to protect moderna.
Rather than allowing the case to play out on its own, the Biden administration — via Delaware U.S. Attorney David Weiss — filed a statement of interest in the dispute last month "to relieve Moderna of any liability for patent infringement resulting in performance of the ’-0100 Contract and to transfer to the United States any liability for the manufacture or use of the inventions claimed in the Patents-in-Suit resulting from the authorized and consented acts."
and this is an incredibly dangerous idea.
it essentially renders all companies selling products to the feds IP privateers enabled and even encouraged to grab any and all IP without license, incorporate it into their products, sell it to the state as massive profit, and then skate off scott free while the taxpayers who were on the hook for this initial profiteering are placed once more in the lurch for IP issues because, let’s remember: “government pays” always and everywhere means “you pay.”
in just the way we used to enable ship’s captains to go capture foreign vessels as a form of privatized navy, we’ve rendered IP eminent domain the demesne of private actors.
at least the piratical privateers of yore were proscribed from attacking american shipping…
as soon as you get a government contract, you have a de facto (and perhaps de jure) letter of marque to essentially capture and take as a prize any IP you like and then the mess will get cleaned up (maybe) later when and if the victims can sue the feds.
it destroys any semblance of a market for IP when one sells to the state as the whole thing becomes a post facto “assumed negotiation” generally under the US court of federal claims which has an iffy (at best) record of arriving at fair settlements and market rates. so, just because you win and the state has to “pay” you have zero assurance of anything like a market rate much less one you could have negotiated on your own.
28 U.S. Code § 1498 creates what amounts to an admiralty court for the adjudication of privateer property plunder.
it’s pure “legal plunder” and we all know how that one goes:
and this breaks so many things it’s hard to even know where to start.
it makes it all but impossible to know where you stand as a patent holder.
it makes it incredibly hard to compete as a private, consensual commerce actor against those who do business with the state by granting to them what amount to free licenses to any and all IP.
this is a massive ingrained advantage on not only cost but access. not everyone wants to grant IP licenses. but if this “we used it without asking, profited from it greatly, then handed the bill to uncle sam” model is allowed to stand and proliferate, how can it help but become dominant?
all the access, none of the costs.
who can compete with that?
it’s essentially the nationalization of all intellectual property in the US and the grant of free licenses to any company that sells to the state with the mess to be cleaned up later (if at all) and billed to john q taxpayer.
this is past monopoly. it’s full license to steal with a guarantee that if caught, someone else has to do the time.
could there possibly be a more perverse incentive set guaranteed to generate the most egregious of misbehavior?
could there be any system more assured of creating a privileged aristocracy of companies who possess a pure form of the etymological “private law” from which the word privilege derives?
and could there be a system more assured of thereby crushing innovation, competition, and progress by impairing the value of patents and IP and thus making the funding of development and discovery less or unprofitable and the whole of the system capricious?
it’s one “stacked court” away from nationalizing all intellectual property with no payment at all.
it will also drive science and innovation underground and into the realm of “trade secrets” to prevent such plunder, a process that will stifle and stymie all manner of scientific endeavor as no one will feel comfortable publishing or sharing their innovations for fear they will be stolen by the privateer navy.
this breaks the engine of innovation, replication, and discovery diffusion.
knowledge will be siloed and guarded like miser’s hoards.
this is such a stunningly destructive set of ideas that only the most egregious of shortsighted fools or amoral kleptocrats would champion it.
draw your own conclusions about the government and our need for it therefrom.