A long post at Volokh. Note the lottery ticket angle. Shades of Plant on copyright.

Then we have Libertarian lawyer Randy Barnett pointing out the contradictions of IP as property

In the Progress Clause, the Constitution refers to "exclusive right" for "limited times" not to IP, which has nothing to do with property.

Hunter McDaniel adds in the comments that IP was used to create a false metaphor, and that any government-granted monopoly has value for the grantee but that that does not make it property.

Thanks to Mark Brady for the link.

Blogger Matt Yglesias posts a YouTube video of Tony Blair singing a copyrighted song pasted over C-span videos of speeches he made, including the one about his retiring as PM. Yglesias notes that it violates copyrights but aptly argues it would be sad if viewers couldn't see it (link here).

Have a look before it gets taken down.

The New York Times carries this brief but laughable story asserting the sculptor's intellectual property rights extending to pictures of one of his statues (link here). How far can this go? Or is it just for publicity?

“Sculptor Files Lawsuit Against Wal-Mart The sculptor who created a 7,000-pound charging bull sculpture that has become a favorite tourist photo stop at the foot of Broadway has filed suit in federal court in Manhattan against Wal-Mart, complaining that it is selling lithographs of his work without his permission. Arturo Di Modica, who made the sculpture with his own money as a tribute to America's rebound from the 1987 stock market crash, also sued several other companies for what he described as unauthorized use of his work, including North Fork Bank, which has used an image of the bull in a television advertising campaign, the lawsuit said. In the dead of the night in December 1989, Mr. Di Modica used a truck and crane to bequeath the fierce-looking sculpture illegally to the Wall Street area, plunking it down near the New York Stock Exchange. It was hauled away but was later returned by the city's Parks Department and installed in nearby Bowling Green, where it has remained. In 1998 Mr. Di Modica registered the bull with the United States Copyright Office. For many years he has sought to recoup his costs for the work by selling it to someone who will agree to leave it where it now stands. John Simley, a spokesman for Wal-Mart, said the company had not yet been served with papers in the case and would wait to comment. RANDY KENNEDY”

Apple has agreed to pay $100 million to Singapore's Creative Technology and allow it to supply accessories for the iPod to settle a software patent dispute over the interface that allows iPod users to select a song, album or track by navigating a succession of menus.

Both companies sought patents on the software, but Apple's was denied, while Creative's was granted. Creative then sued Apple for infringement and to stop the import of iPods which are manufactured in China ( see the NY Times article here).

This settlement again challenges the whole idea of software patents. Who pays? The consumer. Microsoft does not need a patent on Windows to keep out competition. It protects its technology by secrecy. But what is original and unique about a set of menus in simple, perhaps obvious processes using a set of related menus? Why then could Creative go home with the profit? Probably because Apple was concerned that its iPod source would be blocked and its highly profitable sales of music downloads for the iPod, said to be its biggest source of profits, jeopardized. And that its own software patents would be threatened if they generally came under attack. Remember,as well, "the International Trade Commission was conducting an inquiry into the dispute but this is now expected to end."

The New York Times reports that Major League Baseball claims to own the commercial use of baseball statistics. If MLB prevails, unlicensed commercial fantasy-baseball operations would have to cease operation. Says the Times:

The dispute is between a company in St. Louis that operates fantasy sports leagues over the Internet and the Internet arm of Major League Baseball, which says that anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license. The St. Louis company counters that it does not need a license because the players are public figures whose statistics are in the public domain.... The case is scheduled for jury trial in United States District Court in St. Louis beginning Sept. 5. CBC and Major League Baseball Advanced Media filed motions for summary judgment that the court could rule on in July.

MLB already licenses operations that use player photos and team logos. But according to the Times:

Major League Baseball Advanced Media, which runs its own array of fantasy games on the league's portal, MLB.com, has decreased its number of licensees from dozens in 2004 to 19 last season to 7 this year, focusing on large multimedia outlets like CBS SportsLine and cutting out many of the four-figure licenses that had covered smaller operators' use of only names and statistics. CBC, which had a license from 1995 to 2004, filed suit to confirm that it has the right to use those limited materials freely.

Interestingly, baseball once took a different position:

When several major leaguers from the 1940's and 50's sued Major League Baseball over use of their names and statistics in materials like promotional videos and game programs, baseball argued that such use was protected by the First Amendment.

Is any comment necessary?

Cross-posted at Free Association.

The maker of the BlackBerry wireless e-mail service, Research in Motion (R.I.M), has more patent troubles, and it's fighting back. I don't want to go over the full case against patents, or intellectual property (IP) rights in general, but I do want to restate a powerful argument made by others, such as N. Stephan Kinsella. Some pro-IP folks think it is self-evident that if someone originates an idea he has a natural right to control the manufacture and sale of devices that instantiate that idea. After all, he thought it up. He exerted creative effort. Property rights are said to flow from that creative exertion.

It can't be. No ownership rights flow from thinking, regardless of how important thinking is to production. Ownership flows from other factors, and there are no gaps in the emergence of property rights that have to be filled in by creative thinking. Using Occam's Razor, we just don't need mental effort to justify property rights.

To see this, imagine that Howard Roark's evil twin enters your land without permission and uses your building materials and tools to create an acclaimed and original architectural marvel never seen before. Does this Roark have any rights whatsoever to the building? Of course not. Not even a scintilla of a claim. Why not? Because he didn't own the land or the materials. No degree of creative genius could transfer ownership to him. (And he could not gain ownership by mixing his labor with already owned things.) The real owner has every right to destroy the building without paying Roark a penny.

On the other hand, if Roark had legitimately owned the land and materials, the creation would clearly be his. His prior ownership of the elements of his creation would be sufficient to justify his ownership of the building. Thinking up the ideas embodied in the product adds nothing as far as his property rights are concerned. Prior ownership or original appropriation of unowned resources is not merely necessary to property rights in a product, it is sufficient.

The point is not that thinking is unimportant, only that it is irrelevant to the generation of property rights.

Cross-posted at Free Association.

From Merriam-Webster

theft is the act of stealing; specifically: the felonious taking and removing of personal property with intent to deprive the rightful owner of it.

Does making a copy of my idea "deprive" me of it? If we grant a monopoly over the "idea" of Mickey Mouse, or over soap the only right you have is the exclusive right to do business with your customers. So the only thing I can "steal" from you are your customers. But your customers might not be so eager to be your property.