Techdirt notes in CAFC Judge Regrets Decisions That Resulted In Software Patents that one of the federal judges on the Court of Appeals for the Federal Circuit admits that he was "troubled by the unintended consequences" of the earlier decisions that resulted in the proliferation of software and business model patents. Well at least he regrets it!

Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck , for example, wrote:

Just as the common law evolved to recognize "trespass by barbecue smoke," it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.

Hayek also believed that case-law might need occasional "correction" by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state--via its courts and legislatures--to issue "just" law. Well, I don't know about that. Here we have a "bad" judicial interpretation of a "bad" legislated statute. Oh, well, I guess they can at least "regret" it.

(Cross-posted at Mises blog.)

Murray Franck is a hard core Objectivist, and parrots Rand all the way down the line. He fulminated a few times at anarcho-capitalists during visits to the monthly NYC Junto event. Rand, of course, thought patents were the heart and soul of property rights. For her views on the monopoly formerly known as intellectual property, see Capitalism the Unknown Ideal. I have always resisted calling Objectivists libertarians, or at least used a qualifier when referring to them as such. Recall that Rand referred to libertarians as "hippies of the right." I don't think she ever called herself one, certainly not after her falling out with Rothbard. Hayek at least warned of the dangers of patents in his last book The Fatal Conceit.

It would be strange to call libertarian those who'd legislate the suspension of liberty for commercial privilege.

Crosbie Fitch: These libertarians obviously confused commercial privileges with real property right.