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(Copyright 2018, )

n.

Resolved: 5. To express, as an opinion or determination, by resolution and vote; to declare or decide by a formal vote; -- followed by a clause; as, the house resolved (or, it was resolved by the house) that no money should be apropriated (or, to appropriate no money).

Definition of the word “resolve,” given by Webster is “to express an opinion or determination by resolution or vote; as ‘it was resolved by the legislature;” It is of similar force to the word “enact,” which is defined by Bouvier as meaning “to establish by law”.

Artificial Intelligence (AI) systems may invent, but are they inventors? The Federal Circuit recently answered this question in Thaler v. Vidal, holding that an AI system cannot be listed as a named inventor on a patent application. While it may seem that this decision provided much needed clarity in the field of intellectual property protection for AI inventions, there remains a gap in how to protect such inventions while promoting innovation.

The AI system at issue in Thaler, Device for Autonomous Bootstrapping of Unified Sentience, or “DABUS” for short, was developed by physicist Dr. Stephen Thaler. In 2019, Dr. Thaler tested the limits of patent law by filing patent applications in more than a dozen countries for two inventions created by DABUS. In the applications before the United States Patent and Trademark Office (USPTO), Dr. Thaler, instead of listing an inventor’s last name, wrote that “the invention [was] generated by artificial intelligence.” The USPTO denied Dr. Thaler’s applications on the grounds that “a machine does not qualify as an inventor.” Dr. Thaler challenged the USPTO’s decision in the U.S. District Court for the Eastern District of Virginia. The District Court agreed with the USPTO and concluded that an “inventor” under the Patent Act must be an “individual,” and the plain meaning of “individual” as used in the statute is a natural person.

The next step will be time. With time, and a concerted rigor for knowledge, information — again, the great equalizer — will penetrate even the most sheltered of souls under totalitarianism. Humanity will come to a consensus that each individual is merely one among equals, creating a rejection of any other role. By consequence, the third and final stage of this utopia will be utopian socialism, a system of government AI will facilitate. Utopian socialism through AI, as it turns out, will be the perfect form of government for a newly enlightened, digital age of humans. The system entails, at its most basic, means of production that are communally owned, worked and profited from — respective to the amount of work each individual invests. This economic theory succeeds in eliminating labor hierarchies that collapse into crippling inequality; but has in practice failed at supplementing market competition within these economies. The result is that supply (produced by this socialist government) does not accurately reflect consumer demand, but rather arbitrarily reflects the quota that its centralized government spat out. Economists call this the ‘calculation problem’. However, Alibaba co-founder Jack Ma believes AI can solve this problem. Ma said, “because we have access to all kinds of data, we may be able to find the invisible hand of the market.” In other words, using AI, we can simulate the forces that typically regulate the supply-and-demand economy, and bolster such in centralized quotas that reinforce social good within industry. Humans will have to code this software, of course, applying one strain of domain-specific intelligence to each of the industries that the AI government is expected to absorb. Among these industries will be manufacturing, education, climate restoration — which AI will maintain on the bureaucratic level. But because its inputs will be processed based on universally understood judgments in democracy and good will, and because its outputs will reinforce self-sustaining communities with social autonomy, Narrow AI has the potential to revolutionize life as we know it. Use it correctly, and we may just have a utopia on our hands.

The Russian invasion of Ukraine has sparked fierce political debate on the geopolitical consequences of the conflict. But less noticed and equally as important, the war has paved the way for a more sweeping militarization of what was already a global war economy mired in deep political and economic crisis. Geopolitical tensions and international conflicts may be tragic for those caught up in conflagrations such as in Ukraine — but advantageous for those seeking to legitimize expanding military and security budgets and open up new opportunities for capitalist profit-making in the face of chronic stagnation and social discontent. In late March, the Biden administration, citing the Russian invasion, called for a $31 billion increase in the Pentagon budget over the previous year and on top of an emergency appropriation weeks earlier of $14 billion for Ukraine’s defense. Prior to the invasion, in late 2021, the U.S. government approved a nearly $800 billion military budget, even as, in the same year, it ended the war in Afghanistan. Almost overnight following the Russian invasion, the U.S., European Union, and other governments around the world allocated billions of dollars in additional military spending and sent streams of military hardware and private military contractors into Ukraine. Shares of military and security firms surged in the wake of the invasion. Two weeks into the conflict, shares of Raytheon were up 8 percent, General Dynamics up 12 percent, Lockheed Martin up 18 percent and Northrop Grumman up 22 percent, while war stocks in Europe, India, and elsewhere experienced similar surges in expectation of an exponential rise in global military spending. Russian President Vladimir Putin, in the words of the managing director of AeroDynamic Advisory, a Pentagon contractor, is “unquestionably the best F-35 salesman of all time,” in reference to a spike in U.S. government funding for the Lockheed Martin jet fighter. Said one consultant to Boeing, General Dynamics, Lockheed Martin and Raytheon Technologies: “For the defense industry, happy days are here again. When the defense budget rises it tends to lift all boats in the industry.” Militarized Accumulation The Russian invasion — brutal, reckless and condemnable by any standard — has sparked debate on NATO’s proposed expansion into Ukraine and the role that it played in motivating the Kremlin. U.S. officials were keenly aware, in fact, that the drive to expand NATO to Russian borders would eventually push Moscow into a military conflict. “We examine a wide range of nonviolent measures that could exploit Russia’s actual vulnerabilities and anxieties as a way of stressing Russia’s military and economy and the regime’s political standing at home and abroad,” notes a 2019 study by the RAND Corporation, a Pentagon-affiliated think tank. “The steps we examine would not have either defense or deterrence as their prime purpose,” it states, but rather, “these steps are conceived of as elements in a campaign designed to unbalance the adversary, leading Russia to compete in domains or regions where the United States has a competitive advantage, and causing Russia to overextend itself militarily or economically.” But the provocation could not be reduced to geopolitical competition, however important, as most observers were keen to do. Missing from the larger picture was the centrality of militarized accumulation — of endless low- and high-intensity warfare, simmering conflicts, civil strife and policing — to the global political economy. Militarized accumulation refers to a situation in which a global war economy relies on the state to organize war-making, social control and repression to sustain capital accumulation in the face of chronic stagnation and saturation of global markets. These state-organized practices are outsourced to transnational corporate capital, involving the fusion of private accumulation with state militarization in order to sustain the process of capital accumulation. Cycles of destruction and reconstruction provide ongoing outlets for over-accumulated capital; that is, these cycles open up new profit-making opportunities for transnational capitalists seeking ongoing opportunities to profitably reinvest the enormous amounts of cash they have accumulated. There is a convergence in this process of global capitalism’s political need for social control and repression in the face of mounting popular discontent worldwide and its economic need to perpetuate accumulation in the face of stagnation. Wars provide critical economic stimulus. They have historically pulled the capitalist system out of accumulation crises while they serve to deflect attention from political tensions and problems of legitimacy. It took World War II to finally lift world capitalism out of the Great Depression. The Cold War legitimated a half century of expanding military budgets and the Iraq/Afghanistan wars, the longest in history, helped keep the economy sputtering along in the face of chronic stagnation in the first two decades of the century. From the anti-Communist fervor of the Cold War, to the “war on terror,” then the so-called New Cold War, and now the Russian invasion of Ukraine, the transnational elite, led by Washington, have had to conjure up one enemy after another to legitimate militarized accumulation and deflect crises of state legitimacy and capitalist hegemony onto external enemies and contrived threats. The events of September 11, 2001, marked the start of an era of a permanent global war in which logistics, warfare, intelligence, repression, surveillance and even military personnel are more and more the privatized domain of transnational capital. The Pentagon budget increased 91 percent in real terms between 1998 and 2011, while worldwide, total state military budget outlays grew by 50 percent from 2006 to 2015, from $1.4 trillion to more than $2 trillion. (This figure does not take into account the hundreds of billions of dollars spent on intelligence; contingency operations; policing; bogus wars against immigrants, terrorism and drugs; and “homeland security.”) During this time, military-industrial complex profits quadrupled. However, focusing just on state military budgets only gives us a part of the picture of the global war economy. As I showed in my 2020 book, The Global Police State, the various wars, conflicts and campaigns of social control and repression around the world involve the fusion of private accumulation with state militarization. In this relationship, the state facilitates the expansion of opportunities for private capital to accumulate through militarization, such as by facilitating global weapons sales by military-industrial-security firms, the amounts of which have reached unprecedented levels. Global weapons sales by the top 100 weapons manufacturers and military service companies increased by 38 percent between 2002 and 2016 and can be expected to escalate further in the face of a prolonged war in Ukraine. Said one consultant to Boeing, General Dynamics, Lockheed Martin and Raytheon Technologies: “For the defense industry, happy days are here again. By 2018, private for-profit military companies employed some 15 million people around the world, while another 20 million people worked in private security worldwide. The private security (policing) business is one of the fastest-growing economic sectors in many countries and has come to dwarf public security around the world. The amount spent on private security in 2003, the year of the invasion of Iraq, was 73 percent higher than that spent in the public sphere, and three times as many persons were employed in private forces as in official law enforcement agencies. In half of the world’s countries, private security agents outnumber police officers. These corporate soldiers and police were deployed to guard corporate property, provide personal security for executives and their families; collect data; conduct police, paramilitary, counterinsurgency and surveillance operations; carry out mass crowd control and repression of protesters; run private detention and interrogation facilities; manage prisons and participate in outright warfare. Now, these same private military and security firms are pouring into Ukraine, with some mercenary companies offering between $1,000 and $2,000 a day for those with combat experience. The Russian invasion has accelerated but did not originate the ongoing surge in military spending around the world. It is notable that state military spending worldwide skyrocketed in the wake of the 2008 global financial collapse even beyond the post-9/11 spending hike, rising from about $1.5 billion in 2008 to over $2 trillion in 2022. The fact that this explosion in spending coincides perfectly with continued worldwide stagnation following the Great Recession suggests that the heightened militarization of the global economy is as much or more a response to this chronic stagnation than to perceived security threats. If bursts of militarized accumulation (such as that unleashed by 9/11, then by the 2008 financial collapse, and now by the Russian invasion) help offset the overaccumulation crisis further into the future, they are also high-risk bets that heighten worldwide tensions and push the world dangerously towards all-out international conflagration. The Crisis of Global Capitalism This crisis of global capitalism is economic, or structural, one of chronic stagnation in the global economy. But it is also political: a crisis of state legitimacy and capitalist hegemony. The system is moving towards “a general crisis of capitalist rule” as billions of people around the world face uncertain struggles for survival and question a system they no longer see as legitimate. Historically, wars have pulled the capitalist system out of crisis while they serve to deflect attention from political tensions and problems of legitimacy. Economically, global capitalism faces what is known in technical language as “overaccumulation”: a situation in which the economy has produced — or has the capacity to produce — great quantities of wealth but the market cannot absorb this wealth because of escalating inequality. Capitalism by its very nature will produce abundant wealth yet polarize that wealth and generate ever greater levels of social inequality unless offset by redistributive policies. The level of global social polarization and inequality now experienced is without precedent. In 2018, the richest 1 percent of humanity controlled more than half of the world’s wealth while the bottom 80 percent had to make do with just 5 percent. The international development agency Oxfam reported in January that during the first two years of the coronavirus pandemic, the 10 richest men in the world more than doubled their fortunes, from $700 billion to $1.5 trillion, while 99 percent of humanity saw a fall in their income and 160 million more people fell into poverty. Such inequalities end up undermining the stability of the system as the gap grows between what is — or could be — produced and what the market can absorb. The extreme concentration of the planet’s wealth in the hands of the few and the accelerated impoverishment and dispossession of the majority means that the transnational capitalist class, or TCC, has increasing difficulty in finding productive outlets to unload enormous amounts of surplus it accumulated. In the years leading up to the pandemic, there was a steady rise in underutilized capacity and a slowdown in industrial production around the world. The surplus of accumulated capital with nowhere to go expanded rapidly. Transnational corporations recorded record profits during the 2010s at the same time that corporate investment declined. Along with militarized accumulation, the TCC has turned to unprecedented levels of financial speculation and to debt-driven growth to sustain profit-making in the face of the crisis. If left unchecked, overaccumulation results in crisis — in stagnation, recessions, depressions, social upheavals and war — just what we are experiencing right now. But there is a related dynamic at work in the global war economy: the need for dominant groups to suppress mass discontent and deflect the crisis of state legitimacy. International frictions escalate as states, in their efforts to retain legitimacy, seek to sublimate social and political tensions and to keep the social order from fracturing. All around the world, a “people’s Spring” has taken off. From Chile to Lebanon, Iraq to India, France to the United States, Haiti to Nigeria, South Africa to Colombia, Jordan to Sri Lanka, waves of strikes and mass protests have proliferated and, in some instances, appear to be acquiring an anti-capitalist character. Wars and external enemies allow the ruling groups to deflect attention away from domestic malaise in their effort to maintain a grip on power as the crisis deepens. The transnational elite, led by Washington, have had to conjure up one enemy after another to legitimate militarized accumulation and deflect crises of state legitimacy and capitalist hegemony onto external enemies and contrived threats. In the U.S., this sublimation has involved efforts to channel social unrest towards scapegoated communities such as immigrants or other marginalized groups — this is one key function of racism and was a core component of the Trump government’s political strategy — or towards an external enemy such as China or Russia, which had clearly become a cornerstone of the Biden government’s strategy well before the Russian invasion of Ukraine. U.S. presidents historically reach their highest approval ratings when they launch wars. George W. Bush reached an all-time-high of 90 percent in 2001 as his administration geared up to invade Afghanistan, and his father George H.W. Bush achieved an 89 percent approval rating in 1991, right as the U.S. declared the end of its (first) invasion of Iraq and the “liberation of Kuwait.” It is unlikely that an increasing militarization of the world economy can in the long run offset either the economic or the political dimensions of the crisis of global capitalism. Global capitalism is emerging from the coronavirus pandemic with more inequality, more authoritarianism, more militarization, and more civic and political strife. In the U.S., class struggle is heating up, with a wave of strikes and of unionization drives in Amazon, Starbucks, and elsewhere in the gig economy. The current inflationary spiral and the escalation of class struggle in the United States and around the world point to the inability of the ruling groups to contain the expanding crisis. The drive by the capitalist state to externalize the political fallout of the crisis increases the danger that international tensions and localized conflicts such as in Ukraine will snowball into broader international conflagrations of unforeseen consequences. As the Ukraine crisis continues to drag on and the global revolt escalates, there will be a radical reconfiguration of global geopolitical alignments to the drumbeat of escalating turbulence in the world economy that will feed new political upheavals and violent conflicts, making global capitalism all the more volatile. While it is hard to imagine a return to the status quo antebellum in Eastern Europe, in the larger picture, the Ukraine crisis is not the cause but a consequence of the general crisis of global capitalism. That crisis will only get worse. Fasten your seat belts; it will get much worse.

Is capitalism destroying democracy and fostering the rise of authoritarian regimes around the globe?

With the election of right-wing populist governments and leaders in Hungary, Poland, the United Kingdom, Brazil, Turkey, India, Italy and the United States, the prospect that the answer is "yes" is gaining credence.

Firstly, the combination of capitalism and democracy was supposed to bring prosperity and progress to all nations that adopted them. For a brief time after the fall of the Berlin Wall, when globalisation went into overdrive, this seemed a believable story.

The financial crisis brought this collective delusion to an end in the global North. The generation that came of age during the crisis of 2008 has had to adjust to the reality that they are unlikely to be better off than their parents.

Globalized capitalism, increasingly deregulated and unmoored from national restraints, undermines a balanced economy in multiple, complex, and cumulative ways. With global markets and no global standards, domestic workers are thrown into direct competition with more desperate overseas workers. A century's worth of democratic struggles to regulate labor standards are hosed away. At the other end of the wealth spectrum, the worldwide liberation of finance creates astronomical incomes for the elite. The developing world gains access to world markets but, for the most part, becomes an even more extreme case of wealth and poverty. Money becomes more powerful than citizenship, corrupting both the polity and the economy.

Globalization also accelerates cross-border movements of people. Corporate leaders and their political allies have promoted international flows of cheap labor. Remittances have become an important source of income for much of the third world. The European Union requires free cross-border movements of workers as a condition of membership. Immigrants are also refugees from wars or dictators. A few national leaders, from Sweden to Germany to Canada, have idealistically opened their doors to political and economic refugees. Migrants, often poor and often scorned, are outside national social contracts; they are nonparticipants in national democratic deliberation, and vulnerable to both exploitation and retribution. Even before recent terrorist attacks, their presence undermined settled social compromises.

Earlier, in Chapter 2 it was argued that intellectual property relates to abstract objects and that one view of abstract objects is that they are convenient mental fictions. To say that they are convenient is to understate their value to capitalist production. In fact abstract objects have the effect of qualitatively expanding the commodity production possibilities of capitalism. We can illustrate with the very example which Marx uses to show that services do not amount to productive labour.

Assume that the pianist is playing her own original composition. Generally speaking, copyright statutes create copyright in musical works. The definition of musical works is usually very open-ended or sometimes not defined at all.59 But once copyright in a musical work exists the pianist has something to own, something to sell or license. The convenient mental fiction (the abstract object) becomes through law a commodity. The pianist is now in the same position as the piano maker, contrary to Marx’s assertion. She steps over the economic border that separates the badlands of unproductive workers from the rolling green fields inhabited by productive workers and enters the productive life of capital.

In some minimal and indirect ways, patent law can internalize negative externalities (or prevent them from arising in the first place). First, the patent system has applied certain requirements of patentability to deny patents on "immoral" inventions, which presumably have significant potential to create negative externalities. For example, historically the patent office and courts applied the doctrine of moral utility to deny patents on inventions that contravened public morals.138 Under this doctrine, "a new invention to poison people, or to promote debauchery, or to facilitate private assassination"139 would fail the moral utility doctrine and not receive a patent. However, the moral utility doctrine has largely fallen into desuetude because of institutional competence limitations: the Patent and Trademark Office (PTO) and courts are not arbiters of public morality.140 While it had some historical bite, the moral utility doctrine does little these days to deny patents on so-called "immoral" inventions and reduce associated negative externalities.

In sum, technologies generate significant negative externalities. More importantly, patented inventions-which enjoy government-granted exclusive rights-also generate significant externalities.114

Of course, it is exceedingly difficult to identify and measure the full scope of externalities associated with any invention.115 While some externalities are obvious, others are quite attenuated from a particular invention. At this level, characterizing an effect as a negative externality is a policy judgment akin to the notion of proximate causation in tort law. Depending on one's judgment, the negative externalities of Facebook may include work hours lost to procrastination, harms to political discourse, and widespread feelings of ennui from seeing one's Facebook friends lead seemingly glamorous lives. Additionally, characterizing negative externalities can be highly context specific and subjective. Video games and the consoles that play them are certainly economically significant technologies. But are billions of person-hours spent playing video games wasting time and desensitizing people to violence, or do they provide beneficial amusement, excitement, and education?116 Finally, as should be clear, even if one can properly identify negative externalities, it is very difficult to quantify them in any practical way. It seems doubtful that one could translate the harm from ideological polarization into a dollar amount for purposes of imposing a Pigouvian tax on Facebook's patented filter bubble technology.117

Intellectual property scholars widely recognize that patents internalize positive externalities from technological development.123 As we will see, even traditional property rights theorists like Harold Demsetz argued that patents enable inventors to internalize some of the external benefits of their inventions, thus bolstering incentives to invent.124 Citing Demsetz, legal scholars Oren Bar-Gill and Gideon Parchomovsky state: "Patents, like other property rights, internalize the positive externalities flowing from inventions and allow the inventor to license the invention to third parties."125

Of course, the patent system neither aims for nor achieves full internalization of positive externalities. Legal scholars Brett Frischmann and Mark Lemley influentially argue that internalizing all spillovers by giving a patentee complete control over all uses of an invention would decrease, rather than increase, welfare.126 Indeed, the patent system is designed to both internalize some positive externalities and produce others.127 Patents facilitate information spillovers by requiring patentees to disclose their inventions.128 Economist Giovanni Ramello even argues that "the existence of information externalities is the statutory goal of intellectual property."129 Furthermore, patents generate temporal spillovers through providing widespread access to an invention after a patent expires.130 Returning to the example of Merck, after its patent expires, spillovers increase substantially as generic competition drives down the price of a formerly patented drug.131

Commentators have long recognized that innovation creates enormous positive externalities.44 While innovators benefit substantially from their own creations, significant benefit slips, uncompensated, to others.45 Innovation spillovers benefit consumers who receive unanticipated consumer surplus, competitors and potential competitors who obtain valuable information, and society at large.46 Because spillovers from innovation are well recognized in the economics and IP literature, this Section's discussion of positive externalities from innovation will be relatively brief.

Examples of innovation spillovers are legion. Biopharmaceutical companies receive compensation for the drugs they produce, but such drugs generate enormous uncompensated benefits by reducing healthcare costs and increasing social welfare for all. Similarly, Microsoft Office enhances worker productivity and generates significant social value that Microsoft does not capture as private gains. Communication technologies produce enormous spillovers by facilitating conversations, connections, and transactions that the developers of such technologies could never imagine, let alone factor into their development efforts. Network technologies enable positive externalities wherein the value of such networks increases as more users join them.4 Broadly, one of the most important positive externalities of technological innovation is increased economic growth.48

The function of internalizing externalities is not foreign to patents; in fact, internalizing positive externalities is their reason for being. The classic justification for patents posits that the technical information at the heart of technology is a public good. This means that the information is both nonrival (one's consumption of the information does not diminish its availability) and nonexcludable (in the absence of legal protections, it is difficult to prevent others from accessing it).119 As a public good, technical information is subject to undersupply in a fully competitive economy; noninnovating firms could simply copy the inventions of others, thus undermining incentives to invent. Patents allow inventors to exclude free riders, thus mitigating the public goods problem and maintaining incentives to invent.

Put differently, patents internalize positive innovation externalities. Assume that it costs Merck $2.6 billion to develop a new FDA-approved drug and bring it to market.12o In the absence of patents, competing drug companies could simply copy Merck's drug for free. In this scenario, Merck's significant R&D expenditures would generate tremendous positive externalities for its competitors (as well as patients and society at large).121 While positive externalities seem like a good thing, they can depress incentives to invent if the inventor does not capture a meaningful share of the benefits produced. If nearly the entire value of Merck's invention "spills over" to others (including competitors) as positive externalities, Merck would have little incentive to invest in R&D. Patents provide Merck and other inventors with a right to exclude others from practicing an invention for twenty years. As such, they allow inventors to internalize a significant share of the positive externalities of their inventions, thus shoring up incentives to invent.

We admit that altering the patent system will have limited impact on many of the antisocial innovations that we discussed above, because many software innovations simply aren’t covered by patents.397 Reducing patent incentives will likely have no effect on the development of pricing algorithms, labor surveillance software, or social media. These innovations are generally covered by trade secret law which has its own pathologies about screening out antisocial rights.398 Nonetheless, patents represent a massive expenditure on innovation that we have argued is much less valuable than many people believe.

Assume, for example, that a government is currently spending $1 trillion on innovation incentives, spread equally between patents and grants. If it wanted to keep the overall incentive level the same while boosting the share of grants, two things would have to happen. First, it would have to reduce the patent incentive by shortening patent duration, making patents harder to obtain, or reducing patent scope. Second, the government would have to increase the amount of public funding for innovation. While the latter move might appear politically unpopular, this is only because consumers often fail to recognize the extent to which they are already paying for the innovation incentives of the patent system. Increased education about the costs as well as the benefits of patents would be valuable.

To a considerable extent, contemporary innovation research has come down on the side of markets and patents as opposed to the government and grants or prizes as the superior incentive regime.116 In these debates, markets’ superior knowledge of what people want is the key to their success.117 Markets generate information about what goods and services people desire, and patents enable innovators with new ideas to compete successfully against copyists.118 Governments and their bureaucrats, by contrast, may not know what people desire, and they may be subject to biases or industry capture.119 The role for grants and other ex ante incentives is largely reserved for early stage research and other areas that are not subject to commercialization.120

Given the modest nature of this proposal, the broader prescription arising from this Article is greater integration of patent and nonpatent mechanisms in a holistic policy framework to internalize negative externalities from technological innovation. In recent years, scholars have fruitfully explored the importance of nonpatent policy levers in supplementing the patent system and promoting innovation. For instance, government grants, tax breaks, and prizes fill sizable gaps in the patent system in generating and distributing new technologies,293 Notably, these are "affirmative" mechanisms that encourage innovative activity. In the language of externalities, they are subsidies aimed at helping innovators internalize more of the positive externalities of their creations.

Of course, patents are not the only mechanism for internalizing positive innovation externalities. Direct public funding, tax breaks, and prizes are among many policy levers that governments employ to enable innovators to capture a greater share of the positive externalities they generate. 122 However, patents are the primary legal mechanisms for promoting innovation, and they exist to internalize innovation spillovers.