Property
CARRIER
Spring 2015
1. FIRST POSSESSION: ACQUISITION OF PROPERTY BY CREATION & CAPTURE
A. INTELLECTUAL PROPERTY
I. Acquisition by Creation
International News Service v. Associated Press (P.56)
Facts: ∏ steals news from ∆’s services and sells it as its own
Rule: Between companies, news is a quasi-property that can not be sold after it is taken from another company who created it because that is misappropriation
+Misappropriation v. misrepresentation- has the same results so its wrong
+Quasi-property can’t be used against the public.
Cheney Brothers v. Doris Silk Corp. (P.61)
Facts: ∏ created designs that ∆ stole, none were patented because it was impossible to tell which would be popular and it would take to long to get done before the season started/ended.
Rule: If a person can’t obtain a patent or copyright on its products, it can’t recover from someone who copies/imitates them.
+Nowadays you can copy ornamental shit/expressive shit, but not functional.
Smith v. Chanel Inc. (P.62)
Facts: ∏ advertising their perfume saying that it was just as good as ∆’s, ∆ sues because ∏ used their name
Rule: You can use another products name because it’s good for consumers
+it drives the price down, and benefits the idea of free market.
Doug Baird
If someone takes your property you don’t have it, if someone takes your IP then you still have it
2. Cabining IP
His Paper
Thesis- IP is becoming like property in the sense that its getting more protection.
^If that is the case, should there also be limits on it.
Doctrine of Equivalents is a legal rule in most of the world’s patent systems that allows a court to hold a party liable for patent infringement even though the infringing device or process does not fall within the literal scope of a patent claim, but nevertheless is equivalent to the claimed invention.
Genericide- when a brand name item becomes the default name for a general item; Kleenex for tissues
Patents- Used to cover multi-generational works.
Used to be able to forum shop, then the federal circuit was created to stop that (SCOTUS usually
hates their decisions because they are too strong for the patentees).
Copyright- covers derivative work (secondary things based off the first). Lasts Life + 70 years
DMCA- digital protection (watermarks, view only once things, can’t fast forward)
Trademarks- Used to prevent confusion.
Trade dress- could only protect trademarks like logos, now you can as how something looks for
example; Mexican restaurant decor.
Changed; don’t have to show confusion, court assumes in the local market the brand is the same
+Trade dilution
Rights of Publicity- using a celebrity’s name or likeness for commercial advantage.
His Ideas on IP
Can’t exclude others from information once they know it because its intangible
(nonexclusion)
Can’t infringe on using information because its infinite, you don’t take away how much is left (nonrivalous)
-Poor justification for IP is that why make when others can make something similar
+US is utilitarian- IP is supposed to help society, but that’s not whats happening lately
General Public License- forces people to stay open source if started open (clause you can put in).
If it’s becoming more like property there should be a right to exclude, but exclusion shouldn’t be the only reason.
Downsides of exclusion;
Dangerous because of monopoly
Innovation bottlenecking- the original creator blocks next generations
Public domain shrinks
Speech is effected because of suits for discussing copyrighted products
Decentralization- more consolidated power
2 reasons of utilitarianism- provide innovation incentives and prevents depletion of finite sources
eminent domain, easements, and adverse possession are all ways to fix some of those problems.
You have the right to exclude, transfer, and use (bundle of rights).
+Necessity is a limit to exclusion
B. THEORIES OF PROPERTY
Labor- you put in the work, you should reap the benefit
Personhood- you express yourself, and your property is an expression of yourself through external environment
Utilitarianism- using everything to its max benefit for the greatest social interest (development, save resources)
^primary justification for property
First occupancy (possession)- first possessor is the owner
Liberty (civic republicanism)- property is needed for freedom and self governance because it gives you interest in the (gov’t) system
Distributive justice (fairness)- property can be used to set up a system in which there is more equality
Anti-commons- too much right to exclude creates a lack of utility in resources
C. ACQUISITION BY CAPTURE
1. Animals
Pierson v. Post (P.18)
Facts: On public property, ∆ killed a fox that ∏ was chasing with his dogs.
Rule: To have ownership over a wild animal you need to capture it (pursuit is not enough).
+Dissent- Look at the custom in the area to decide what the rule should be.
Popov v. Hayashi (P.114)
Facts: ∏ slows down a pitch, holds on to it until the crowd hits him and ball gets dislodged, ∆ picks it up.
Rule: It was split because this was an insane case were neither party was at fault for what happened
Pre-possessory interest- ∏ had his; court created this idea like it did in INS v. AP
Ghen v. Rich (P. 26)
Facts: ∆ bought a whale that 3rd party scooped off near shore than ∏ had killed and tagged as custom.
Rule: Custom is added to capture, in industries that there are specific nuanced customs like this.
+ Whale was deprived of its liberty (because ti was killed).
Keeble v. Hickeringill (P.30)
Facts: Famous duck pond case.
Rule: Malice in action will end up with a ruling for the other person if it affects someone’s livelihood.
-competition on the merits (even with malice) is cool, though (having a better duck pond).
2. Wild Animals and Fugitive Resources
+Constructive possession isn’t actual possession, it just means that you almost possess (land owner has constructive possession).
+Relativity of title- who has relatively more title than another (can’t trespass against a trespasser who took from 3rd party)
+Rules for domesticated are different than wild animals- encourages & rewards those who domesticate
+If the animal isn’t from the area (outside of natural habitat) someone should be on notice that it is someone else’s
^Even if it’s a normal one, you want to be sure there is notice
+Gov’t can own animals for fishing regulations and things like that, but isn’t liable for them.
+Some natural (& fugitive [flows back & forth between property]) resources are treated liked wild animals +Courts likely to give injunction to keep from draining those resources (limiting the rule of capture).
-You can’t subsurface trespass to get them, though.
+Reinject gas/other resources for storing purposes will keep you from being liable for damages.
Three Rules for Water:
1) English (take all you want),
2) American (don’t waste, first to tap),
3) Riparian (whoever owns land)
a. Surface water is prior appropriate (first to capture & put to beneficial use is the owner)
b. who ever owns the land
3. Externalities
+Externalities- decisions affecting a third party that are external of your decision making process (you don’t think of it)
+Transaction costs make negotiations difficult (can’t get everyone, or they won’t agree, or wont barter)
+Private property allows for exclusion thereby helping save for the future
^there are still externalities, but it’s less of a problem because you only deal with those around you, rather than a whole community
+Rule of Capture- catch as much and as quick as you want- diminishing societies advantages of that thing
+Statutes or injun
Estopple- based on representations, one neighbor represents that the other relies on.
C. MECHANICS OF ADVERSE POSSESSION
Howard v. Kunto (P. 142)
Facts: Confusing case where everyone owns the tract next to the one their houses are actually on.
Rule: When there is a privity of estate between parties taking is allowed so as to meet the AP requirement.
+Continuity only counts toward voluntary actions. If a 3rd party kicks you out, and you come back later you don’t restart.
+Can tack on land, too. Not just time.
D. DISABILITIES
“Disabilities” gives you 10 years after that disability ends to be able to bring a suit.
Disabilities are a mental defect, imprisonment, and age of minority
Can’t tack together disabilities, only the first disability counts
Must exist at the time the cause of action accrued (the ORIGINAL entry)
If under age when disabled passed it to you, its ten years after the transfer through death, heir can have guardian bring it
Get to choose your own SoL if there are multiple- because its possible the disabilities rule might actually lower the SoL for you
E. AP AGAINST THE GOVERNMENT
+Some states allow for AP against the gov’t in the same way that it applies against private citizens.
^Others will put a higher time period you have to possess.
+Others allow if gov’t is acting in a business capacity you CAN get adverse possession, though it might be harder.
F. ADVERSE POSSESSION OF CHATTELS
O’Keeffe v. Snyder (P. 151)
Facts: ∏ claims her paintings were stolen and they eventually ended up in the ∆’s possession. Must be stolen because if it wasn’t then there was a bona fide purchaser.
Rule: Discovery rule controls in actions involving AP of chattels, rather than the typical rules of AP.
^Includes things like WHO has it, WHERE it is.
+ SoL extends until a discovery of stolen property because that’s when the CoA becomes real.
-NY Rule uses demand-and-refusal rule, which is much more generous then the discovery rule.
+Can tack personal property because focus is on the original owner.
+owner will win when the purchaser deals directly with the thief who stole from the owner.
+owner sells to entrustee (some sort of art institution) who gives a bad check then sells, purchaser wins.
+when owner voluntarily entrusts then owner is to blame because they interacted & should have caught something.
+when the purchaser deals with the thief and should have an idea something is up, they lose.
3. POSSESSORY ESTATES
A. FEE SIMPLE
Heirs- if a person dies intestate (without a will), their property goes to the heirs (as designated by statute).
Issue- Children and their descendants (1st up)
Ancestors- parents (2nd up)
Collaterals- brothers, sisters, aunts, uncles, cousins, basically any remaining blood (3rd up)
Escheat- goes to the state (last up)
+If intestate, and there IS a spouse, run through the first 3, then give to wife if they don’t exist.
+Under modern rule spouse goes first & gets a larger percentage and splits it with issue, if no issue get all.
!Say IF primogeniture applies then ____, followed by what would happen TODAY
