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Feb 15, 2004



Why would anyone pay $15,000 to have total strangers phone his cell and call him Jenny?


Worse yet, what if a Jenny bought it and couldn't tell the real calls from the fake ones?


My guess would be that a court would most likely rule on behalf of the phone company. Typically, phone companies merely grant users the right to use a number. I suspect this right is revocable, and it's possible that the phone company would want a piece of the action. The phone company would probably perceive this issue as one of contract law, not IP, that would dictate whether or not the phone company can revoke the user's rights to the number.

This is just like bank cards. If you look closely at your ATM card, you'll notice that the fine print declares that the card belongs to your bank and must be returned upon request.


This kind of practice has been around for years, although it was more common among toll-free numbers. They are usally called 'vanity number' and per the FCC selling a number is called 'number brokering' and is 'illegal'.

However, like most arbitrage markets there are ways around the rules and there is a pretty good set of 'consultants' that do nothing but broker vanity toll-free numbers.

Although its not my cup of tea, it is also pretty easy to make money off of vanity numbers because the overhead is all but nil. In fact, they are often linked to commercials for 900#s, and something like Jenny's number can quickly make back the $15k at $5.95/min to talk with Jenny.

Its also easy to find numbers that are available, for instance 1-866-PlayMoney is currently open. Just go to http://businessesales.att.com/products_services/tollfreeproduct_cataloglookup.jhtml



Nice info, thanks Bruce. Convenient that there's a regulatory history, but I guess it segregates this issue from other IP-related ones.


It's not really an IP issue, Jules. You can't copyright a seven number sequence. (Although, somewhat oddly, you may be able to copyright a sufficiently long number, in a way. Read this re copyright=number-rights.)

I think there are interesting trademark issues. There are some good phone number/trademark cases out there, actually. But that's all I'll say on that.

Re the ownership issue, Clive Thompson says:

It's much like the fights that have cropped up in the world of online games like Ultima Online or Everquest, where the players began treating their virtual swords, castles and characters as a form of property, and selling them on Ebay -- utterly without the consent of the companies.

Hmm. Thoughts, Julian? Same issue?


Yes, Greg (and yes, Clive), same issue, as far as I can tell.

Which is why I brought it up in the first place. It's interesting to me that people are responding to this phenomenon with such great confidence that IP issues have little to do with it, whereas there's been so much haggling around that same question as applied to virtual property. Judging from all the comments so far, the jurisprudence seems clear when it comes to phone numbers: IP questions weigh very little, license agreements weigh a ton.

Can we say, finally, that that's the case for MMORPG items as well? Or if not, what's the meaningful difference between the two types of property?


> Which is why I brought it up in the first place.


I think we need to be careful with the terms. Saying it isn't "intellectual property" isn't the same as saying it isn't "property." As Black defines property it is "an aggregate of rights whcih are guaranteed and protected by the government." In the case of the MMORPG items, virtual artifacts may be IP because (among other reasons) the artwork and underlying code may be subject to copyright. However, that doesn't explain whether they are "property" in the sense of items subject, e.g., to player possession and conversion.

Dan and I make the observation in the California Law Review article that calling the MMORPG items "property" in the latter sense is generally consistent with traditional legal theories of property. That's interesting, but much of that anaylsis doesn't map nicely onto phone numbers. And as we say, a typical EULA would probably trump any player interest vis-a-vis the game owner.

The Ninth Circuit's opinion in Kremen v. Cohen is worth looking at. This is Judge Kozinski:

Kremen therefore had an intangible property right in his domain name, and a jury could find that Network Solutions "wrongfully disposed of" that right to his detriment by handing the domain name over to Cohen. The district court nevertheless rejected Kremen's conversion claim. It held that domain names, although a form of property, are intangibles not subject to conversion. This rationale derives from a distinction tort law once drew between tangible and intangible property: Conversion was originally a remedy for the wrongful taking of another's lost goods, so it applied only to tangible property.

Later in the opinion, however, Judge Kozinski rejects the district court's distiction between the conversion of tangible and intangible property.


Uh... "conversion"? I smell a term of art here, but that's as close as I come to knowing what you're talking about. Have pity on a poor newbie?


Julian> Can we say, finally, that that's the case for MMORPG items as well? Or if not, what's the meaningful difference between the two types of property?

I don't mean this in a coy way at all, but is it just legal precedent that marks the difference?


Greg and Julian:

I suggest a very important and relevant distinction between game items and phone numbers is developer intent that game items be treated as property (they permit and encourage alienability).

There is not the same intent with phone numbers. Indeed, I could sell Julian mine, but unless the phone company actually makes Julian's phone ring when Greg dials the number ...

Far too many legal scholars confuse the "I" in "IP" to mean intangible. While all intellectual property may be intangible, all intangible property is definitely not intellectual property. "IP" should only impose cost of use on non-rival "property"--it is otherwise inappropriate.

Jeff Cole


I agree that Trademarking seems to be a good route, as even fairly small numbers seem to be trademarkable like '288' or '212'


I guess you could also add a '.com' to a phone number and claim Property; like '8675309.com'.

But, I wonder if you couldn't do the same for Avatar names? Anything stopping players from trademarking their Avatar names in RL, thereby securing their name in the history of that MMOG?

It may also be possible to trademark guildnames, or custom product names within a MMOG. SWG lets members name their crafted items, and my guess is that these custom names could be trademarked in RL.

Also, I think that if MMOG developers wanted to, they could probably claim that subscription/optional fees include specific property rights, clearly that's the direction that 2L and There seem to be going in. The logic being that if MMOG developers can claim the right to retain property rights, they could certainly decide to claim that this same property is transferable.



As previously mentioned, there can be no 8675309 without the phone company. And I don't think that the telco should be beholden to Tommy Tutone (sp?) just because he used that phone number in a song. Therefore, I must vote that that phone number is worthless.

I'll concede though, that the recent ruling regarding mobile phone numbers makes this a little trickier. Do we have any data on phone number transfers? Or perhaps a telco policy on the matter?

On the other hand, money changes hands. It's good for the economy and let the buyer beware and all that good stuff. If you've got that kind of bread to spend on a phone number, knock your lights out.

By the way, everyone who reads this needs to go to Google and type in their phone number. See if you get any hits. I can't think of many legitimate uses for this, but it's certainly neat.


Jules: sorry, "conversion" is a term of art -- another one you can find in Black's Law Dictionary. Generally speaking, it means unauthorized assumption of rights of ownership of another's goods, etc. For simplicity, just think "theft" -- though the fit with the dictionary definition of theft isn't perfect.


Bruce, one minor hitch to trademarking any of the things you mention: you need 'bonafide use in commerce' either to obtain or retain the trademark (i.e. if attacked or reserved). No use in commerce means you might as well not have paid for and obtained the trademark.

Personally, I don't have a problem with the eBay auction. Unless there's a specific clause in the user agreement prohibiting this activity, I say go for it. I don't see it as an IP issue per se, especially since there really hasn't been a creative aspect to this product or process (excepting the original song, of course).

And on a side not, the price is up to $65,400.00 after 180 bids and still has 5 days 21 hours left on the auction. (I wonder who's spending $65,000 on a phone number.)



OK, now that I know what conversion is (thanks for the explanation; time to put Black's Law Dictionary on my Amazon wish list), I remain uncertain as to why phone numbers don't map every bit as nicely onto traditional definitions of property as virtual swords do.

Are you saying it's because no one can steal them? Surely that's accidental. Were I to invent an unstealable car (and market it to lawyers as a "nonconvertible," hehe, heh... eeeh), it would still be property in every meaningful sense, no? So where's the difference?

But before we try to answer that, here's why I care. I'm with Jeff in wondering what intangibility has to do with intellectual property. I suspect too that the confusion between the two contributes to an increasing tolerance for certain extensions of IP law into domains that are none of its business.

The erosion of the first-sale doctrine with regard to software sales seems to me to be one such extension. Sony's claims that we can't hack our Aibos unless it lets us are another. And developer claims that virtual-property sales infringe on their IP are, I believe, yet another.

I understand, of course, that EULAs generally trump IP law, and I've argued (at the State of Play conference, as some will recall) that this may sometimes be for the best. That's all the more reason, though, not to let businesses do an end-run around contract agreements by deploying IP doctrine of dubious validity.

So just how dubious is it? I had thought that maybe by establishing a clear analogy between phone numbers (where IP is clearly a very minor factor) and virtual property (where the irrelevance of IP is less obvious), we might clear up some of the confusion between the intangible and the intellectual.

Not that traffic in either commodity amounts to a hill of beans in this crazy world, but the law being a network of analogies, I figure maybe some clarity in this small corner of the network might radiate out into realms that actually matter. Any chance?


> Not that traffic in either commodity amounts to a hill of beans in this crazy world, but the law being a network of analogies, I figure maybe some clarity in this small corner of the network might radiate out into realms that actually matter. Any chance?

Big chance, I think. Imho, virtual property issues are kind of like the aqua vitae of property. They let you get a parallax view of the property phenomenon. That said, there is a good deal of heavy lifting (read:thinking) required. I don't have all the answers, or even a good three word mantra (E.g. "Code is Law" "Free the Mouse") at this point to explain where I stand.

Generally, I think the integration of digital networks into social systems should make us question the assumptions of our IP laws, and to a certain extent, that seems to be happening. The law is conservative, though, and proceeds very cautiously. A while back, I wrote a couple papers on digital copyright and trademark issues. As you can tell from them, I'm a fan of intellectual property, but I've definitely got criticisms of some aspects of contemporary IP laws.


I noticed that this auction was removed by eBay, after the bidding went over just over $60k.

In related news, I just found out that our good Governor released a remix of 867-5309/Jenny just two months ago, possibly explaining the revived popularity in the song.




According to this update, auctions for Jenny's number in various area codes were pulled by eBay for internal review sometime after bidding in the 212 auction surpassed $200,000.

The most interesting part:

When reporters contacted phone companies for opinions, they got contradictory views. Verizon says customers don't own their numbers and therefore can't sell rights to them. A spokesperson for BellSouth, on the other hand, said nothing prevents such transfers. The quote:

"What two parties do between themselves is between them.... We provide phone service."


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