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A new IP right is born: “the right to make up restrictions if it makes money”

As I explained in Types of Intellectual Property, “Intellectual property” is an umbrella term that includes many types of legal rights. They are called “property” or IP for propagandistic reasons,1 and include patent, copyright, trademark, and trade secret, plus newer rights. And there is always a push for legislation creating more types of IP, such as fashion designs. Legislation is the main source of new IP rights, of course, but the modern statist courts can contribute to. Case in point, as Mike Masnick notes here, a federal court just made up, out of whole cloth, a new IP right, which he dubs “the right to make up restrictions if it makes money.”

As Masnick write:

Two years ago we wrote about a troubling case coming out of Wisconsin, in which the Wisconsin Interscholastic Athletic Association (WIAA) claimed that it could allow a single exclusive broadcaster for high school sporting events in the state. The Gannett newspapers challenged this by streaming four different events online, eventually leading to this lawsuit. There were other highly questionable limitations on news media, including a claim that they could not even report play-by-play data. That part is the most ridiculous, as that seems like a clear violation on free speech rights, and also goes against previous caselaw that has allowed the reporting of factual game information. But, stunningly, last year, a district court judge ruled that commerce trumps the First Amendment, and since the WIAA needs to make money, such deals are just fine. This didn’t make much sense to us, and we hoped that it would be overturned on appeal.

No such luck.

Ima Fish alerts us to the appeals court ruling which upheld the lower court and seems to endorse the creation of a wholly made up new form of intellectual property right that has no basis in the law. The court clearly says that this is not a copyright case, so copyright law doesn’t apply. So what right exactly is WIAA granting to its broadcasting partner? That’s not clear at all from the ruling. If it’s not copyright, it appears to be something entirely made up by the appeals court, which might be loosely defined as “the right to make up restrictions if it makes money.” I’m not joking. The court repeatedly focuses in on the idea that the WIAA needs to make money, and that somehow makes it okay to grant a single company an exclusive license.

I don’t see how this makes much sense. I could see that they should be allowed to grant a license to an “official” broadcaster, and even give them additional access, but I don’t see how they can stop someone else from recording the material and broadcasting it as well — especially when they admit that it’s not a copyright issue.

And since this new exclusive made up imaginary right has no basis in law, we don’t know what any exceptions are. Is there a fair use exception like in copyright? The contract says other agencies can show two minutes of streaming video from events, but it doesn’t need to say that, and fair use shouldn’t be determined by a contract anyway. The whole thing seems bizarre and troubling, in that it seems to suggest that public entities can create a special kind of exclusive broadcast intellectual property right if they use it to make money.

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  1. See Intellectual Properganda. []
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To the extent possible under law, Stephan Kinsella has waived all copyright and related or neighboring rights to C4SIF. This work is published from: United States. In the event the CC0 license is unenforceable a  Creative Commons License Creative Commons Attribution 3.0 License is hereby granted.