In case you haven't been over to the Volokh Conspiracy this week, you are missing out on some great discussions, including -

James Madison's original views on IP.

The continued debate over misguided attempts to equate 'intellectual property' with real property as well as the early references to 'literary property'.

Sir William Blackstone's views on Copyright and Patents.

Good stuff for your reading pleasure.

Second Circuit Court of Appeals upholds a federal law that bans "bootleg" recordings of live music performances. It admits that the law is not constitutional under the limitations of the Copyright Clause, but in the next breath explains that it is still permitted under the even broader Commerce Clause which essentially allows the federal government to regulate everything in today's world.

The one silver lining is that the Appeals court remanded the case back to the trial court to consider possible First Amendment defenses. It is still unclear how that argument might shape out in court.

The lawsuit was briefly mentioned on this website here.

Fortunately, a federal judge has done the right thing and upheld free speech rights.

In her suit, filed in March in U.S. District Court in Los Angeles, Burnett claimed that after she refused to grant Fox and Family Guy mastermind Seth McFarlane consent to use the theme music from The Carol Burnett Show, they "knowingly and deliberately" rewrote the episode to disparage Burnett's famous cleaning-lady character.

...

In his ruling signed Friday and made public Monday, U.S. District Judge Dean Pregerson saw little if any harm done to Burnett. While he "fully appreciates how distasteful and offensive the segment is to Ms. Burnett," Pregerson noted that parody is protected by the freedom of speech rights guaranteed under the First Amendment.

Burnett's original complaint can be read here.

Randy Barnett over at Volokh takes on the ruthless George Lucas/Star Wars Copyright Empire -

[T]he laugh is really going to be on Lucasfilm because, as we all know, people won't invest scarce time producing creative works that others want to watch without the financial incentives provided by intellectual "property" rights granted for "limited times" (i.e. in perpetuity). So it is safe to predict that no one will contribute any mashups to the new Starwars.com website. Boy, will that be embarrassing for them!

William Stepp does an admirable job rebutting Helprin's deeply flawed reasoning in arguing for perpetual copyrights. You might also want to check out the response from Iiya Somin over at Volokh.

Somin reiterates a thought that always comes to my mind on this issue that cuts right to the heart of the matter: Imagine the consequences of giving Shakespeare's great-great-great-great-great grandchildren the power to end distribution and performances of his work for all time. It would also prevent the creation of any derivative works (i.e., no West Side Story, RAN, and thousands of other works based on Shakespeare. All wiped out since they would violate the "property rights" of someone who has been dead for hundreds of years.).

Helprin's idea is not merely wrong - it would be utterly destructive to any semblance of artistic culture.

[Update: Lessig has put together a useful wiki page for rebutting Helprin. Hat-tip James Grimmelmann over at PrawfsBlog.

Details here.

[Update: Wired readers submit their own suggestions for patent reform.]

Todd Bishop assesses Microsoft's monopoly gambit here.

Microsoft claims that free open-source software like Linux violates over 200 of its patents. No - that's not a typo. 200.

In a rational world, this would be a joke. But our patent system is clearly at odds with a rational world. At least it exposes the lie of free market competition in the U.S. There can't be any when society allows litigation based on the insecurities of business executives over what the competition is doing.

It is becoming increasingly clear that Mickey Mouse is being adopted as a de facto symbol of Palestinian politics.

This poses some interesting questions and possibilities. Regardless of how the Disney Corporation may react or object to this, if the Palestinians are routinely using Mickey's image, then it would clearly become appropriate for people in the U.S. to be able to use Mickey's image as well as a matter of fair use political speech regarding the situation in the Middle East.

Would people really suggest that Hamas should be able to use Mickey's image at will, but that American's wishing to respond in the same language must first get permission from the Walt Disney Company? I doubt that even hardcore copyright apologists would try to argue for such a perverse scenario.

If Disney chooses to do nothing here (or finds that it is simply unable to do anything), then Mickey will eventually become a de facto public domain figure throughout the Middle East. That would potentially lead to a de facto public domain status in the U.S. as well since to enforce a strict copyright on Mickey would then intrude into core political speech.

Perhaps a terrorist organization like Hamas may actually end up doing what our corrupt Congress has failed to do - Free Mickey!

Quote of the day from Robert W. McChesney, responding to Glenn Reynolds:

Our media system is not a "free market" because it is built largely upon extraordinary government subsidies. The government has been in the middle of building our media system from the beginning. Perhaps no other industry this size has anywhere near as much direct and indirect government support and involvement. Consider the value of monopoly licenses to radio and TV channels or monopoly cable TV franchises. Or consider the value of copyright protection, a government created monopoly privilege. We are talking tens of billions of dollars in annual subsidies. The list goes on and on.

I am not opposed to government subsidies. I think they are unavoidable. Like Madison and Jefferson, who instituted enormous printing and postal subsidies to spawn a vibrant press, I believe they are the price of building a democratic media culture. The problem in recent times is that the policymaking process has gotten so corrupt that the giants firms that dominate media and telecommunication give back very little in exchange for the bounty bestowed upon them. We hear a lot of PR hokum about brilliant entrepreneurs and free markets. But huge corporations like AT&T and Comcast were created based on government monopoly licenses. Their "competitive advantage" comes with owning politicians and regulators, not serving consumers. They are doing everything they can to use their domination of politicians to lock in control over the Internet, and make it their private fiefdom. They want to terminate the egalitarian genius of the Internet, Glenn, which captivates both of us. These firms would not know a free market if it kicked them in the butt.