Property, Carrier, Spring 2011
Terms
Genericide: generic use of a trademark makes it lose its protections.
i.e. using Google as a verb
Granting clause: transfers ownership
Habendum clause: describes type of title granted
Servitudes: land use arrangements that arise out of private agreements
Easements, licenses, covenants, equitable servitudes
6 theories of property law
Labor Theory, Locke
Every man has property in his own person: whatever you mix your labor with becomes your own property
Labor has to make up the majority of the aspect’s value
Enough and as good proviso: whatever you take there must be enough and as good left in common for the others
Can take the rewards of your labors as long as there is some left for others
Spoilage: Cannot take too much so that is spoils
Personhood Theory, Hegel
Person has the right of putting his will into anything and thereby making it his
Distinction b/w fungible and personal property is crucial
Strength of the entitlement increases as the object becomes more central to one’s personhood
Applies most to copyright
Utilitarianism
Utilitarian justification: greatest good for greatest number
Provides incentives for development of land & materials
Preventing the depletion of finite resources
First Occupancy
Liberal/Civil Republicanism: ownership of property is necessary for democratic self-gov’t
Distributive Justice/Fairness
By giving people property we get some distributive justice
First Possession
Intellectual Property
Patents: processes/products are novel, useful, non-obvious
20 yrs from date of original application
Non renewable, enters public domain
Copyrights: expression of ideas in books, articles, music, art, etc.
70 yrs after death
Idea itself cannot be copyrighted
Must be original but not novel
Facts not protected, compilations of facts are
Exceptions to copyright:
Right of fair use
i.e. brief quotations of books
Right to parody
Right to idea expression
Trademarks: words and symbols indicate the source of a product/service
Lost when use is abandoned or use becomes generic
Quasi property: intangible things that posses the qualities of property. Can’t stop the public from having access but can prevent a competitor
International News Service v. AP
INS stealing AP’s news stories before publishing
INS misrepresenting themselves, not misappropriating as in palming off (product copies another to look like the other)
i.e. cola branding its
usive rights to prepare derivative works
DMCA: encryptions cannot be hacked, rise of Internet makes copying easier
Patents
Scope & length of rights more powerful through stronger enforcement
Creation of Federal Circuit: stopped forum shopping, increased uniformity
Trademarks
No longer need to prove customer confusion
Only show use of same/similar brand name will dilute distinctive quality of mark
Rights of Publicity
Covers nearly every aspect of identity (White)
Survives death in some jurs
Property rights to use, exclude, transfer aren’t necessary in IP
Utilitarian justification: greatest good for greatest #
Preventing depletion of finite resources
Tragedy of commons: resources held in common will be depleted by overuse
Tragedy of anticommons: many owners hold rights of exclusion in scare resource
IP rights should be based on necessity, development, equity
Incentives for development
Don’t know if property rights led to development: correlation, not causation
