Should the heirs of creative artists control the interpretation and production of works written by long dead authors? Should the law allow Shakespeare's heirs to determine how the Bard's works are to be staged?

The New York Times visits this issue here.

For those who read French, economist Bernard Salanie´s views on IP.

Martin Osborne discovered a copy of my book with Drew Fudenberg Theory of Learning in Games available as a free download. It comes with a link to buying the book on Amazon, and appears to consist of a scan of the table of contents together with an electronic version that once appeared online, and now is available only with a password. We´ve been trying to get the publisher MIT Press to give us permission to put the book online for several years now. They always smile and act friendly like they will do it, but never actually do anything. Needless to say, I´m not rushing to bring any new book projects to MIT Press at this point. Since they won´t give us permission to put it online, it seems the next best thing is post the link.

From Stephen Spear who correctly comments that all the IP lobbyists getting together to form one giant lobby cannot be a good thing.

I´ve been too tied up with other things to blog lately. This came in a few weeks ago from Fred Luk

Playa Cofi Jukebox , an on-line music site just went off-line today. It posts on its website that "The Recording Industry Association of America (RIAA) has "advised" us that our delivery of user selectable streaming audio music "...distributes copies of digital files of RIAA member sound recordings to end users," and is therefore in violation of the member artist copyrights."

I guess technically, the site does violate copyrights laws since I don't suppose they pay any royalties like the radio stations do.

I have been listening to music on that site for only a month or so. It's great - I listen to great hits of different years in the background while doing work on the computer. Two days ago, links to music (hits) after 1964 were taken off. Today, the above message appears. But it also says: "We will take a few days to find a new way to provide you with the music you love at this site." It will be interesting to see what kind of "new way" they will come up with and how long will it take the RIAA to catch up with it.

The Wall Street Journal reports today that the Scott Miracle-Gro Co. is suing its start up rival TerraCycle Inc. for infringing its trade dress, and for false advertizing. Scott claims TerraCycle's packaging and signage is violating its intellectual property. It also disputes its younger rival's claim to have superior products. Not surprisingly, Scott wants the profits from the products at issue deposited to its bank account.

TerraCycle is fighting back here.

Tom Szaky, the co-founder and CEO of TerraCycle, says that the suit could put his company out of business.

But that's the point isn't it? If you can't beat 'em fair and square, use the state to beat 'em up! Lee A. Iacocca, in his May 28 Business Week Guest Commentary, "Chrysler's New Driver," [I can't find a link] says that "Leadership in the car industry means knowing where corporate policy ends and public policy begins. You see, companies are not separate entities from government." Mussolini couldn't have said it better. You see, it's okay for a big corporation like Scott to use the power of the State to cut off the air supply of a smaller competitor, especially a pesky one like TerraCycle, that is gaining market share and space at Wal-Mart, Home Depot, Target, and other retailers.

In the meantime, those of us who advocate liberty and free markets and oppose intellectual monopoly can take a page from Captain Boycott's book and boycott the Scott Miracle-Gro Co. and its products. We can also buy TerraCycle's innovative goods and support it morally, and by getting the word out that competition is good and monopoly is bad, especially the monopoly of so-called "intellectal property."

To the Editor:

In asserting that since a great idea lives forever, so should its copyright, Mark Helprin confuses real and intellectual property ("A Great Idea Lives Forever. Shouldn't Its Copyright?," opinion, May 20.) Information, as embodied in intangible or "intellectual property," cannot be owned, but can only be possessed or experienced, unlike tangible property, as John Perry Barlow pointed out in a 1996 essay. An ideal object, such as a book, music, or other article of property in which information is instantiated, can be owned. The information or expression (e.g., words, musical notations, pictures) contained within them, which conveys the message from the writer or producer to the reader or consumer, cannot be owned.

A tangible object is real property because it possesses three properties: it has a physical instantiation and boundaries, it can be physically possessed and used, and it can be alienated. Intangible or "intellectual property" fails the first and third criteria. An author who sells a copy of a manuscript, which is real property, still retains the ideas and word order within it even if he doesn't own them. He owns his manuscript, including the paper, ink, and cover, but does not own the words he writes and their arrangement.

He has two rights to his property, the ownership of his manuscript and to its first disposal. In a free society, he would not have the downstream right to prevent others from making copies of their own property, including copies of his work. He has two ways to prevent others from copying his work, either not publishing it or publishing it in a form that can't be copied, such as by encrypting it.

"Intellectual property" is applied to tangible property by giving a creator (or legal possessor) a state-granted monopoly to do certain things with it, such as making copies. This is accomplished by enjoining others from using their legally owned tangible property to do these things. The economists Fritz Machlup and Edith T. Penrose pointed out in a 1950 paper on the nineteenth-century patent system that the French legislature invented the term "intellectual property" and applied it to ideas that were patented to obfuscate the monopolistic origin of patents. "Intellectual property" is therefore better termed intellectual monopoly. Mr. Helprin is correct when he states that without government intervention, copyright holders would have no right to monopolize the production of copies of their protected works.

Thomas Jefferson recognized that the lack of "intellectual property" in nature (i.e., in a free market) benefited society, contrary to Mr. Helprin's belief that copyright is consistent with the "public good." The authors of the progress clause of the Constitution failed to understand that patents and copyrights impede intellectual progress, act as barriers to innovation and as rent-seeking devices, and imperil the liberties of innocent people using their own property. A creator's first mover advantage, combined with the ability to sell complementary services, enables him to reap the competitive rents that ensure the continuation of intellectual progress without intellectual monopoly.

He thinks copyright should last forever.

Mark Twain only wanted it for a million years.

A rebuttal is in order.

James Surowiecki sounds a cautionary note in The New Yorker about "Exporting I.P."

The U.S. has demanded in recent free-trade agreements that foreign governments import I.P. regimes even though they hinder access to protected technologies. After repeating the I.P. party line that protection is necessary to spur innovation, but that a "balance" is necessary to protect the interests of entrepreneurs, inventors, and consumers alike (excuse me while I adjust the scales...there, that's it), he points out that the American economy grew rapidly in its youth by ignoring I.P. laws. He might have pointed out that foreign authors got paid on their American sales even without an American copyright law.

He nails it at the end by pointing out that I.P. laws making the world safe for Pfizer, Microsoft, and Disney don't deserve the name free trade. Now if he could just ditch the balancing act.

From the perspective of two veteran music retailers.