Property Law
Carrier
Spring 2010
1. Basic Property Concepts
a. Bundle of Property Rights
1. Right to exclude (Most important limit because give ability to fully take advantage of the land)
2. Rights to Transfer
3. Right to use – access, extraction, management
4. Rights in relation to the item being tangible
b. Limits on Property – paradigm structure that delineates the rights and limits of property law
1. Development (major theme)– encompasses the coordinated growths of communities, the co-existence of neighbors, and the prevention of resource depletion à maximizes the value of property
1. Based on the concept of the fact that land is finite
2. Right to Exclude: Easements, Capture, Bona Fide Purchasers
i. Property is not absolute and has many limits. Its challenge is to remind people that it is limited, especially when applied to IP.
3.
2. Necessity (major theme)
1. Right to exclude is overridden by following necessities
2. Imminent Necessity – privilege to go onto another’s land due to impending emergency
i. Social Necessity
ii. Free Speech à overrides right to exclude, ex: petitioners
iii. Easements by Necessity
iv. Private Eminent Domain – miller can flood river for by damn in mill
v. Public Trust – beneficial to public so that private owner cannot take over an exclude it
3. Equity
1. Right to exclude should not be absolute
2. Encroachments – not fair to force someone to spend $2k to destruct something that goes 1 foot onto your property when only costs $500 to erect
3. Will not be an injunction, but damages
c. Property rights in law are based on (policies/theories):
1. Utilitarianism – relationship between means and ends à property is a means to and end, the end is to maximize utility
1. 2 purposes, both encourage socially productive behavior
i. Providing incentives for the development of land, materials
i. Works can appropriate the results of their labor
ii. Preventing the depletion of finite resources
i. Related to scarcity
ii. Tragedy of the commons à depletion of resources by over-use
a. Land held in common will be over-used à b/c no incentive to preserve the resource for the future
b. Exclusion extinguishes this because creates incentives for efficiently utilizing resources and internalizing the costs of communal ownership (ex: transaction costs)
2. Why does property satisfy utilitarian justifications?
i. Incentives for development à can now internalize effects of development à personal gain
ii. Ownership provides incentives for protection of land’s resources
iii. Disincentives for “free riders”
2. Labor theory: everyone should reap the benefits of their labor
1. Every man has property in his own person
i. Whatever you mix your labor with becomes your own property
2. Limits:
i. Lockean Proviso: Enough and as good left for other
i. You cannot take everything, what you leave for others has to be just as good
ii. Restricted application to when there is enough and as good left in common
ii. Spoilage Principle: laborer should not take enough to where what is left will spoil
i. Ex: field of apples, and I take everything and what’s left is inferior
3. Make up greatest part of asset’s value
i. Cannot say you own something that you only contribute a small part to à must contribute and give the asset a majority of it’s value
3. Personhood theory: private property could be essential to the full development as an individual
1. People get so connected with assets that they become part of them and define a person à based on the will of a person
i. Object become central to a person’s personhood
2. Everyone person has a will and that will creates property
i. Contemporary version: personal possessions have value that cannot be replaced by money à textbook (fungible) vs. wedding ring (personal)
4. First occupancy/possession: occupancy or possession justifies possession
5. Liberty/Civil Republicanism: Owning private property is necessary for a democratic self-government
6. Distributive justice or fairness: property is necessary for more fairness among citizens
d. Intellectual Property
1. The Traditional Story: An Exegesis – Allowing unfettered imitation would obvious deter future innovators and result in suboptimal levels of innovation.
2. A Critical Look at IP’s Traditional Story – In many contexts IP protection does not deter innovation because of non-IP incentives to innovate.
1. Copyright Law; Non IP incentives include: publishers’ lead-time advantages, pre-publication contracts to buy, advertising, etc.
i. Other creative industries like fashion and food flourish without protection.
2. Patent Law:Market-based incentives are more effective than patents: being a market pioneer (arriving first) and building a network of services with more participants.
3. Trademark Law: Expanded beyond its original purpose.
4. Right of Publicity Law: Celebrities are already sufficiently motivated and can recoup their costs associated with becoming a celebrity (in contrast to a copyrighted work, where only the final product is valuable.)
e. The Dangers of Exclusionary Rights in IP
1. Monopoly Loss: IP holders can reap monopoly profits, above the market price, effectuating a transfer of resources from consumers.
2. Intragenerational Bottleneck: One product contains multiple patented components, and one of the patent holders refuses to license the component part.
3. Intergenerational Bottleneck: Prevents cumulative innovation, or innovation based on the original patented product.
1. In which each product generation builds on its predecessor
4. Diminished Public Domain, Speech, and Democracy: Works are not being created because the building blocks are protected.
2. Acquisition by Creation
a. Rule
1. Generally when intellectual property originates from an individual’s creation then it is protected by IP laws (copyright, patent, etc) –right to owner to exclude
1. Requires that the owner of the property obtain the proper protection through the proper processes
i. Patents: granted for novel, useful and non-obvious process of products, lasts 20 years, not renewable
ii. Copyrights: protect expression of ideas in media and publications, lasts 70 years after the death of the author
iii. Trademarks: words of symbols indicating the source of a product or services, protected against use of similar marks
2. Labor theory – reaping the benefits without sowing the field (INS v. AP)
i. Disallows someone from using your work for free
2. Parties are allowed to imitate (Over-arching Common Law Rule)
1. Free-riding is essential to the economy because it lowers prices à better market place for consumer
2. Intangibleà Nonrivalrous à I share my idea with 3 other people, none of use rival each other with the use of the idea
i. IP possessed by many people at one time
3. If an actor puts labor into making factual information his own then is has been use “properly” or “fairly.” (See exception below.)
4. Quasi property is protected in the same way as typical IP
1. Quasi Property – ownership is not of 1 party against the general public, but 1 party against another, specified party
b. Exceptions
1. When the property does not come from an individuals creation, but is merely factual information, but the opposing parties are competitors and one is making money from the information it takes from the other then property become quasi property and is protected
1. Concerns = labor theory, unjust competition, Free exchange of information, which would
r damages (#4)
vi. If the actor possesses the item by methods intended to interfere with fair competition and does in fact cause unfair competition then the court will likely rule that he does not have possession or rights to the property.
2. Exception
i. Because of nature of the gaining possession of the animal (object) it is not reasonable to require an individual to fully deprive the animal of its natural liberties then if a local custom has proved reasonable, useful and is not ambiguous it is appropriate to use that as the standard of occupancy
i. The custom should be embraced an entire business and had been concurred in for a long time by everyone in the trade
ii. Refers to the labor theory “unless it is sustained, this branch of the industry must necessarily cease, for no person would engage in it if the fruit of his labor could be appropriated by any chance finder.”
iii. Overrides no abandonment element
3. Trigger Facts
i. In pursuit of object in action, which is not possessed by any person indefinitely
ii. The local custom is either widely used and unambiguous
iii. Whose property is the pursuit occurring on?
iv. Hindering someone’s trade à unfair competition?
i. Other options are available and should be used instead of directly interfering with trade
4. Examples
5. Pierson v. Post
i. Post is hunting with his dogs in pursuit of a fox while on an uninhabited and un-possessed waste land
ii. Cause of action: Indirect trespass
i. Pierson saw Post coming and killed and carried the fox away in order to prevent Post from killing the fox
i. Post was “chasing and pursing” the fox
ii. Post filed suit à district court found in favor of Piersonà Post appealed
iii. Post did not eliminate escape à no injury, no confinement
iv. Better outcome in terms of policy à if did not establish these elements because prevents floodgates issues
i. Rejected pursuit rule (dissent – use local custom= pursuit) because would be more difficult to establish when pursuit leads to ownership à accepted rule is easier to apply
6. Popov v. Hayashi (2002)
i. Popov came into a baseball game prepared to catch a homerun ball. Barry Bonds hit the record-breaking ball, which Popov caught. Popov was then brought to ground by a mob and was hit and kicked and the ball got lose and Hayashi picked it up.
ii. Never clear if whether Popov would have retained control of the ball if the crowd had not interfered with his efforts.
iii. Judge concluded that the meaning of possession is contextual and in the case of baseball, possession require full control
iv. The judge held that he has pre-possessory interest, therefore had a qualified right of possession.
v. Since Hayashi was not a wrongdoer it would be inequitable to force him to give up the ball à equitable division
7. Ghent v. Rich
i. P filed a suit to recover a fin-back whale
Local custom (Cape Cod) is to shoot the whales with bomb lances, let them sink to the bottom. Then the person who finds them sends word to Provincetown and
