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Monopoly corrupts. Absolute monopoly corrupts absolutely.





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Federal Appeals Court Rules That Free Speech Trumps The So-Called 'Right Of Publicity'

The 8th Circuit Court Of Appeals has not only struck an important blow for free speech, but they may have also prevented the idea of "fantasy sports" from becoming a corporate monopoly.

As the court states: "[T]he information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone."

Indeed. But then again the radical interpretations of 'publicity' rights have been quite strange all along.

PDF link of the decision here.

[h/t: How Appealing]


Comments

I wonder what you're getting at by putting "right of publicity" and "publicity" rights in scare quotes. Do you also refer to "Constitutional rights" and "contract" law? I think you've mentioned before that you have a law degree. Surely you must know--and if you read the case, you definitely know--that there does in fact exist in many states an actual right of publicity. It is not a phantom conjured up by some evil intellectual "property" rights "holders." As I may have suggested before, you do a real disservice to your readers and to yourself by misleading and misrepresenting the law. Non-lawyers reading this blog would quite easily infer that this case is about some greedy company making up a "right" to try to pull the wool over a court's eyes and reserve for itself some illegal monopoly. For your readers who may care--that isn't the case. You may not like the "so-called" right of publicity, but there it is, nonetheless. As is so often the case, wishing won't make it otherwise.
In response to geoff, there are so-called rights of publicity in many (and I think possibly in all 50) states. You are right in that such a right is not a phantom invented by "intellectual property" rights holders. However, it is a so-called statute right passed by state legislatures, which are criminal organizations consisting of tax-robbers and robber-regulators. State legislators have no power of attorney over anyone, and no right to impose their will on other people by passing statutes. A statute passed by a legislative gang is actually "an absurdity, a ururpation, and a crime" as the great Lysander Spooner pointed out, and differs from a natural law, which is consistent with peoples' rights. Examples of natural rights are the right to own property, and the Spencerian right to ignore the State.

Slavery was once the law of the land too, but Spooner and other abolitionists argued that it was inconsistent with natural law and the rights of slaves. So too is the so-called right of publicity. It wouldn't exist in a free market.

The court's decision is riddled with contradictions from a libertarian point of view, even if it arrived at a verdict libertarians would agree with. All parties in the case conceded that Missouri's law of publicity applied, but how can a criminal act--something that is manifestly contradictory to natural rights--apply in a legal case? CBC also took the low road (although maybe it thought it had to) by arguing that Federal copyright law preempted the rights of publicity claim.

Here is more legal swill from the decision: "The Supreme Court has directed that state law rights of publicity might be balanced against first amendment considerations...." The former must give way to the latter, so where's the balance? If two things balance, aren't they on the same plane?

Memo to the Supremes: Just as the natural right to own a gun existed before the second amendment, and is in no way dependent on that amendment (or on any court decision), so too the right to be free of state interference in speech, assembly, and religion does not depend on the so-called first amendment.

This would boggle the mind of law professors and students, but then they accept the monopoly formerly known as intellectual property too.

goeff -

The core of Bill Stepp's comments reflect my own response as well. Only a dunce would suspect that "publicity" laws don't actually exist simply because I choose to put "publicity rights" in quotes (especially in light of the fact that I LINK TO THE ACTUAL COURT DECISION IN QUESTION). But yes - I do use such quotes to denigrate the underlying concepts of such laws. I make no appologies for this.

Similarly, I also often refer to so-called "Intelectual Property" in quotes - not because I deny the actual existence of a legal scheme regarding the topic, but because I wish to convey the notion that so-called "intellectual property" should not be equated with "real property" in either the legal or moral realms (as so-called "intellectual property" proponents are apt to do).

Gosh, I wish I knew with such certainty which rights were natural ones. You're certain there's no natural right to ideas/intellectual property? Did god tell you that, or did you just hear it in the music of the spheres? Are you seriously advocating outright anarchy here with no possibility for efficient institutional arrangements? I'm as much a legislature hater as the next guy, but I can imagine a pretty compelling case for a constitutional republic, warts and all--can't you? At least I would think the question would be up for debate, not asserted as if only an idiot would think otherwise. And the claim that the right of publicity wouldnt exist in a free market is probably wrong. That might be true, but I can imagine another compelling case in which that particular property right was assigned to the parties who would value it most/where transaction costs of re-allocation would be least (assigned to the person being publicized, that is). Or do you think that property rights are an affront to nature as well? Before you answer with the usual pabalum about physical property and intellectual property, let me remind you to look at the property rights literature again--the literature of Alchian and Demsetz and Coase. It ain't about physical pieces of land or chattel. It's really about interactions between human beings. Don't let the terminology confuse you. In this world--the real world--intellectual property rights are property rights, too. It's all about who gets 'em. Your view of the world is that the rights belong to the users of the IP. Fine. Wrong, but fine. But it's as much an allocation of property rights as in mine. You can pretend this relationship between human beings doesn't exist, but, as always around here, wishing won't make it so. So forget the semantics (Armen Alchian told me he regretted using the term property rights for exactly this reason, but he wasn't sure what would work better) and the scare quotes. Oh, and does the music of the spheres sound like the Grateful Dead's Terrapin Station circa 1973? That's really the perfect song.
There are some of us who are for rights such as privacy/publicity and IPR, but are against privileges of monopoly (copyright & patent).

And then are some against all or some of the rights as well as the privileges.

Let's not try to get too upset about what separates us, and focus on what unites us.

:)

You're certain there's no natural right to ideas/intellectual property? Did god tell you that, or did you just hear it in the music of the spheres? Are you seriously advocating outright anarchy here with no possibility for efficient institutional arrangements?

Yes, I'm certain that there's no natural right to ideas/intellectual property. "Intellectual property" (save as Crosbie defines it, which is not how anyone else does) is a government-granted monopoly. IP had its origin in royal grants (letters patent) to court favorites, which were later codified in statute law, first in the Statute of Monopolies (1624), then in the Statute of Anne (1710). The former dissolved most monopolies (such as those in the production of basic commodities such as salt), but retained monopolies in inventions. The latter was the first copyright law. It is a commonplace that ideas cannot be copyrighted, only their expressed forms, such as books, music, movies, art, etc. So God didn't tell me this, but a fairly close study of the history and theory of IP, as well as natural law, did.

I am an anarchist, but will take a constitutional republic (if you can keep it, which you can't) as a second best. That is about as far removed from what we have as anarchy, so why not go with statelessness? You might think it's whacky, but David Friedman (son of Milton) doesn't, and he's a good economist and historian. As for efficient institutional arrangements, are you saying the Post Office is efficient? The Pentagon? Medicare, etc.?

And the claim that the right of publicity wouldnt exist in a free market is probably wrong. That might be true, but I can imagine another compelling case in which that particular property right was assigned to the parties who would value it most/where transaction costs of re-allocation would be least (assigned to the person being publicized, that is). Or do you think that property rights are an affront to nature as well?

The claim is almost certainly right, unless you can point to a common law origin of the right of publicity, which I'm betting dollars to donuts you can't. Just as other IP rights were created by government fiat, so too was the right of publicity. My understanding is that it's based solely on laws passed by state legislatures. To repeat what I said earlier, these statutes are not laws that anyone should obey, unlike laws agaisnt murder, theft, etc., which are consistent with natural rights.

It [property] ain't about physical pieces of land or chattel. It's really about interactions between human beings. Don't let the terminology confuse you. In this world--the real world--intellectual property rights are property rights, too. It's all about who gets 'em. Your view of the world is that the rights belong to the users of the IP. Fine. Wrong, but fine. But it's as much an allocation of property rights as in mine.

1. Property is about interactions between people, and no libertarian ever denied this. It's also about the exchange of property titles in things that are owned--land, personal property, etc. No thing with a title or deed with someone's name, no property. You haven't defined IP, nor have you presented evidence either that it existed in common law (it didn't--see Howard Abrams' classic 1983 Wayne Law Review article), or that it was not created by government grants of monopoly privilege.

2. As for Alchian et al., I have fundamental disagreements with them, which I'm not going into now. To the best of my knowledge, they wrote very little on either the economics or history of IP. I found an essay by Alchian online about property with one oblique reference to IP, which didn't persuade me that he knows much about it.

David Friedman may not think anarchy is whacky, but he also has a problem with the natural rights approach.

Natural rights do not produce desirable outcomes in all situations. Situations can be constructed in which no reasonable man would agree that the approach suggested by natural rights is desirable or even moral. They cannot be used to tell you in advance whether a certain law or approach is a good idea or bad; you have to consider the situation in question.

I can certainly imagine David Friedman arguing for publicity rights if he could find a coherent argument that shows publicity rights are economically efficient.

In my opinion, the proper attack on intellectual monopoly can be either

1) The justification for intellectual monopoly is flawed 2) Intellectual monopoly produces an undesirable outcome (compared to alternative X)

but not

3) Intellectual monopoly is inconsistent with natural rights

And I think the same approach ought to be taken for publicity rights. Show me how the alternative "no publicity rights" leads to a more desirable outcome, and I will immediately concede that they are a bad idea. Say that they are inconsistent with your idea of natural rights, and you will, I think, convince few.

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