So you’ve invented fantasy football, now what?

We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society ~~which will be published in two weeks~~ is out now! It ~~will be~~ is of course freely downloadable, and sold in paper for about $135 less than other casebooks. (And yes, it will include discussions of whether one should ever use the term “intellectual property.” ) The book is full of practice examples.. This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?” No legal knowledge necessary. Why don’t you test your argumentative abilities…?

(~~Book Coming Soon!~~ Book Out now! Needless to say, in this and all exercises in the book, the facts are either entirely made up or significantly altered to generate a better discussion]

Problem 1-2

Justifying and Limiting.

It is early in the days of the web and you and your friends have just had a great idea. You are avid football fans, fond of late night conversations about which team is really the best, which player the most productive at a particular position. Statistics are thrown about. Bragging is compulsory. Unlike other casual fans, you do not spend all your time rooting for a particular team. Your enjoyment comes from displaying your knowledge of all the players and all the teams, using statistics to back up your claims of superiority and inferiority. You find these conversations pleasant, but frustrating. How can one determine definitively who wins or loses these debates? Then you have a collective epiphany. With a computer, the raft of statistics available on football players could be harvested to create imaginary teams of players, “drafted” from every team in the league, that would be matched against each other each week according to a formula that combined all the statistics into a single measure of whether your team “won” or “lost” as against all your friends’ choices. By adding in prices that reflected how “expensive” it was to choose a particular player, one could impose limits on the tendency to pick a team composed only of superstars. Instead, the game would reward those who can find the diamond in the rough, available on the cheap, who know to avoid the fabled player who is actually past his best and prone to injury.

At first, you gather at the home of the computer-nerd in your group, who has managed to write the software to make all this happen. Then you have a second epiphany. Put this online and everyone could have their own team—you decide to call them FANtasy Football Teams, to stress both their imaginary nature and the intensity of the football-love that motivates those who play. Multiple news and sports sites already provide all the basic facts required: the statistics of yardage gained, sacks, completed passes and so on. The NFL offers an “official” statistics site, but many news outlets collect their own statistics. It is trivial to write a computer program to look up those statistics automatically and drop them into the FANtasy game. Even better, the nature of a global network makes the markets for players more efficient while allowing national and even global competition among those playing the game. The global network means that the players never need to meet in reality. FANtasy Football Leagues can be organized for each workplace or group of former college friends. Because the football players you draft come from so many teams, there is always a game to keep track of and bragging to be done on email or around the water cooler.

FANtasy Football is an enormous success. You and your friends are in the middle of negotiations with Yahoo! to make it the exclusive FANtasy Football League network, when you receive a threatening letter from the NFL. They claim that you are “stealing” results and statistics from NFL games, unfairly enriching yourself from an activity that the league stages at the cost of millions of dollars. They say they are investigating their legal options and, if current law provides them no recourse, that they will ask Congress to pass a law prohibiting unlicensed fantasy sports leagues. (Later we will discuss the specific legal claims that might actually be made against you under current law.) As this drama is playing out, you discover that other groups of fans have adapted the FANtasy Football idea to baseball and basketball and that those leagues are also hugely popular.

i.) Your mission now is to lay out the ethical, utilitarian or economic arguments that you might make in support of your position that what you are doing should not be something the NFL can control or limit—whether they seek to prohibit you, or merely demand that you pay for a license. What might the NFL say in support of its position or its proposed law?

ii.) Should you be able to stop the “copycat” fantasy leagues in baseball and basketball? To demand royalties from them? Why? Are these arguments consistent with those you made in answer to question i.)? Read the Locke excerpt (below) before you answer the questions.

John Locke, Of Property

Two Treatises on Government

§ 26. Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.

§ 27. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will any one say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the property, without which the common is of no use. And the taking of this or that part does not depend on the express consent of all the commoners. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them. . . .

§ 29. Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods who hath bestowed his labour upon it, though, before, it was the common right of every one. And amongst those who are counted the civilised part of mankind, who have made and multiplied positive laws to determine property, this original law of Nature for the beginning of property, in what was before common, still takes place, and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what amber-gris any one takes up here is by the labour that removes it out of that common state Nature left it in, made his property who takes that pains about it. And even amongst us, the hare that any one is hunting is thought his who pursues her during the chase. For being a beast that is still looked upon as common, and no man’s private possession, whoever has employed so much labour about any of that kind as to find and pursue her has thereby removed her from the state of Nature wherein she was common, and hath begun a property.

§ 30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to them, then any one may engross as much as he will. To which I answer, Not so. The same law of Nature that does by this means give us property, does also bound that property too. “God has given us all things richly.” Is the voice of reason confirmed by inspiration? But how far has He given it us “to enjoy”? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so established.

§ 31. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth—i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

§ 32. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.

§ 33. God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational (and labour was to be his title to it); not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement as was already taken up needed not complain, ought not to meddle with what was already improved by another’s labour; if he did it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him, in common with others, to labour on, and whereof there was as good left as that already possessed, and more than he knew what to do with, or his industry could reach to.

§ 34. It is true, in land that is common in England or any other country, where there are plenty of people under government who have money and commerce, no one can enclose or appropriate any part without the consent of all his fellow commoners; because this is left common by compact—i.e., by the law of the land, which is not to be violated. And, though it be common in respect of some men, it is not so to all mankind, but is the joint propriety of this country, or this parish. Besides, the remainder, after such enclosure, would not be as good to the rest of the commoners as the whole was, when they could all make use of the whole; whereas in the beginning and first peopling of the great common of the world it was quite otherwise. The law man was under was rather for appropriating. God commanded, and his wants forced him to labour. That was his property, which could not be taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate. And the condition of human life, which requires labour and materials to work on, necessarily introduce private possessions.

Questions:

1.) Which side in Problem 1-2 can appeal to Locke’s arguments? The NFL? The FANtasy Football Players? Both? Find the passage that supports your answers.

2.) Should Locke’s argument apply to information goods? Why? Why not?

3.) Locke talks about a realm that is “left common by compact.” What does this consist of in the realm of information? Would Locke imagine that private property needs to be introduced to the “great common” of the information world, just as it was to the wilderness?

Saturday, August 16th, 2014 Creative Commons, Excerpts from our forthcoming Open Coursebook

From the Blog

Read An Excerpt From The Line

Introduction

In June of 2022 a man called Blake Lemoine told reporters at The Washington Post that he thought the computer system he worked with was sentient.^[i] By itself, that does not seem strange. The Post is one of the United States’ finest newspapers and its reporters are used to hearing from people who think that the CIA is attempting to read their brainwaves or that prominent politicians are running a child sex trafficking ring from the basement of a pizzeria.^[ii] (It is worth noting that the pizzeria had no basement.) But Mr. Lemoine was different; For one thing, he was not some random person off the street. He was a Google engineer. Google has since fired him. For another thing, the “computer system” wasn’t an apparently malevolent Excel program, or Apple’s Siri giving replies that sounded prescient. It was LaMDA, Google’s Language Model for Dialogue Applications^[iii]—that is, an enormously sophisticated chatbot. Imagine a software system that vacuums up billions of pieces of text from the internet and uses them to predict what the next sentence in a paragraph or the answer to a question would be.

About the Book

James Boyle

My new book, The Line: AI and the Future of Personhood, will be published by MIT Press in 2024 under a Creative Commons License and MIT is allowing me to post preprint excerpts. The book is a labor of (mainly) love — together with the familiar accompanying authorial side-dishes: excited discovery, frustration, writing block, self-loathing, epiphany, and massive societal change that means you have to rewrite everything. So just the usual stuff. It is not a run-of-the-mill academic discussion, though. For one thing, I hope it is readable. It might even occasionally make you laugh. For another, I will spend as much time on art and constitutional law as I do on ethics, treat movies and books and the heated debates about corporate personality as seriously as I do the abstract philosophy of personhood. These are the cultural materials with which we will build our new conceptions of personhood, elaborate our fears and our empathy, stress our commonalities and our differences. To download the first two chapters, click here.

Everything You Know About §230 Is Wrong (But Why?)

James Boyle, Oct 25th, 2021

There are a few useful phrases that allow one instantly to classify a statement. For example, if any piece of popular health advice contains the word “toxins,” you can probably disregard it. Other than, “avoid ingesting them.” Another such heuristic is that if someone tells you “I just read something about §230..” the smart bet is to respond, “you were probably misinformed.”

Free, Open, Intellectual Property Textbook

Jennifer Jenkins and I have just published the 2021 edition of our free, Creative Commons licensed, Intellectual Property textbook.

‘Dumping: On Law Reviews’. The Green Bag

I will probably never be published in a law review ever again after writing this. I find myself curiously untroubled by the thought.

Mark of the Devil: The University as Brand Bully

I teach at Duke University, an institution I love. The reverse may not be true however, at least after my most recent paper (with Jennifer Jenkins) — Mark of the Devil: The University as Brand Bully. (forthcoming in the Fordham Intellectual Property and Entertainment Law Journal). The paper is about the university most frequently accused of being a “trademark bully” — an entity that makes assertions and threats far beyond what trademark law actually allows, something that is all too common, with costs to both competition and free speech. Unfortunately, that university is our own — Duke.

Tragedy/Comedy of the Commons @ 50

The Economist was kind enough to ask me to write an article commemorating the 50th anniversary of Garrett Hardin’s Tragedy of the Commons. ““THE ONLY way we can preserve and nurture other and more precious freedoms is by relinquishing the freedom to breed.” This ominous sentence comes not from China’s one-child policy but from one of the 20th century’s most influential—and misunderstood—essays in economics. “The tragedy of the commons”, by Garrett Hardin, marks its 50th anniversary on December 13th.” Read the rest here.

Theft: A History of Music — Free Comic

(When) Is Copyright Reform Possible?

I am posting here a draft of a chapter for Ruth Okediji’s forthcoming book on the possibilities of international intellectual property reform. In my case, the article recounts the lessons I learned from being part of the Hargreaves Review of Intellectual Property in the UK.

“In the five months we have had to compile the Review, we have sought never to lose sight of David Cameron’s “exam question”. Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes. We have found that the UK’s intellectual property framework, especially with regard to copyright, is falling behind what is needed. Copyright, once the exclusive concern of authors and their publishers, is today preventing medical researchers studying data and text in pursuit of new treatments. Copying has become basic to numerous industrial processes, as well as to a burgeoning service economy based upon the internet. The UK cannot afford to let a legal framework designed around artists impede vigorous participation in these emerging business sectors.” Ian Hargreaves, Foreword: Hargreaves Review (2011)

Read the chapter.

Apple Updates — A Comic

Ever been utterly frustrated, made furious, by an Apple upgrade that made things worse? This post is for you. (With apologies to Randall Munroe.)

Open Coursebook in Intellectual Property

Duke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. If you do not want to use the entire casebook you can view and download the individual chapters (in a variety of formats) here. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

So you’ve invented fantasy football, now what?

Free/Low Cost Intellectual Property Statutory Supplement

Today, we are proud to announce the publication of our 2014 Intellectual Property Statutory Supplement as a freely downloadable Open Course Book. It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.) It also has a number of important international treaties and a chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here.

Persnickety Snit

This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property. It is about lawyers and language.

Macaulay on Copyright

Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read. In fact, the phrase “cite unseen” gains a new meaning. That is a shame, because it is masterful. (And funny.) One fascinating moment? When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot… Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

The legal change he thought would do that? Extending copyright to the absurd length of life plus 50 years. (It is now life plus 70). Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

Mark Twain on the Need for Perpetual Copyright

This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property. The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act. Delicious.

Victor Hugo: Guardian of the Public Domain

Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law. (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course. Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5 the price of most statutory supplements — also freely downloadable.) More about that later. While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers. Today I was revisiting Victor Hugo. Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas.

“We Need To Start Seeing Other Futures..”

Today is the second day of “Copyright Week!” Talk about a lede. That sentence has all the inherent excitement of “Periodontal Health Awareness Week” or “‘Hug Your Proctologist! No, After He’s Washed His Hands’ Week.” And that’s a shame. Copyright Week is a week devoted to our relationship with our own culture. Hint: things aren’t going well. The relationship is on the rocks.

Discussion: “The Foolish War Against Song-Lyric Websites”

Professor Alex Sayf Cummings, author of a fascinating book called Democracy of Sound: Music Piracy and the Remaking of American Copyright in the 20th Century (recommended as a thought-provoking read) has an interesting post up about attempts to shut down music lyric sites such as Rapgenius.com.

The Top Ten List of a Conference Planner

Academics (and others) arrange conferences. Perfectly normal people are invited to those conferences to speak. Most of them are just as charming as can be… but then there are the special ones. This Top 10 List of the special people one has to respond to is devoted to all conference planners everywhere. Hold your heads up high. After this, purgatory should be a snap.

(EM)I Has A Dream

August 28th, 2013 is the 50th anniversary of Martin Luther King’s “I Have a Dream” speech. The copyright in the speech is administered by EMI, with the consent of the King family. Thus the speech may not be freely played on video or reproduced and costlessly distributed across the nation — even today. Its transient appearance depends on the copyright owner’s momentary sufferance, not public right. It may disappear from your video library tomorrow. It has even been licensed to advertise commercial products, including cars and mobile phone plans.

read more

The Prosecution of Aaron: A Response to Orin Kerr

Aaron Swartz committed suicide last week. He was 26, a genius and my friend. Not a really good friend, but someone I had worked with off and on for 11 years, liked a lot, had laughed with frequently, occasionally shaken my head over and deeply admired.

The Hargreaves Review

An Intellectual Property System for the Internet Age

James Boyle

In November 2010, the Prime Minister commissioned a review of the Britain’s intellectual property laws and their effect on economic growth, quoting the founders of Google that “they could never have started their company in Britain” because of a lack of flexibility in British copyright.. Mr. Cameron wanted to see if we could have UK intellectual property laws “fit for the Internet age.” Today the Review will be published. Its conclusion? “Could it be true that laws designed more than three centuries ago with the express purpose of creating economic incentives for innovation by protecting creators’ rights are today obstructing innovation and economic growth? The short answer is: yes.” Those words are from Professor Ian Hargreaves, head of the Review. (Full disclosure: I was on the Review’s panel of expert advisors.)

Keith Aoki — A Remembrance Book

A slideshow and downloadable book remembering Keith in words and pictures. You can order a glossy, high quality copy of the book itself here from Createspace or here from Amazon. We tried to make it as beautiful as something Keith would create. We failed. But we came close; have a look at how striking it is… all because of Keith’s art.