Property Outline
Bergelson
Patent: 20 years
Copyright: 70 years
Trademark: Continuous, can loose by not enforcing
I. Property Defined: A bundle of rights, all somewhat limited
a. Right to Use
b. Right to Exclude
c. Right to Transfer
d. Right to Destroy (?)
II. Theories of Acquiring Property / Apply to each case
a. Labor / (first in time)Natural Rights (Locke) – person creates property out of nature by mixing with some part of it his “work”
i. Objection: how much labor, and how efficient, gives person a “right”
ii. USE EITHER AS BEGINNING TO LABOR (DESERT) OR ACTUALLY TAKE THING OUT OF THE COMMON
b. Property and Personhood (Radin) – some property too personal, too much a part of a person’s personhood, must be given special consideration/ emotion autonomy
c. Distributive Justice – give everyone certain minimum basic needs, regardless of talent, social standing (Rawl’s Veil of Ignorance) social and political justice / participation
i. Objection: Wilson “The Moral Sense” Rawl’s theory of the “veil” does not realize that some people value talented, hard working people getting more, also that some people are not risk adverse
d. Utilitarianism – What is good, efficient for most supports distribution of property
i. Tragedy of Commons Problem: In a common area (market), when there are too many participants, we must regulate because people will not regulate themselves, thus leading to their own destruction
III. Possession and Ownership
a. Acquisition by Capture
i. Pierson v. Post (3 Cai. R. 175, 1805)
1. Facts: Post and Pierson were hunters, Post had pursued a fox with a hunting party, Pierson knew that the fox was being pursued, but caught, killed, and carried off the fox. Trial verdict for Post, Pierson appealed that facts not sufficient in law to maintain the action of a trespass
2. Holding: Though actual bodily seizure is not necessary to acquire a right to and possession of an animal, mere pursuit does not constitute a property right
3. Policy Arguments:
a. Majority: this standard assures more certainty
ng them as its own, which is just as unfair
4. Policy Arguments: Fundamental Principle: when rights or privileges of one party are liable to conflict with another’s, each party must conduct its business so that they do not unnecessarily or unfairly injure the other; value of the news is spreading it while it is fresh, INS is “appropriating to itself the harvest of those who have sown,” transmission for profit in competition is key to Quasi Property argument
5. Case is highly critiqued most other decisions follow a different outcome
6. NPR v. Bloggers is a recent issue that brings this to light.
ii. Cheney Brothers v. Doris Silk Corp (35 F.2d 279, 1929)
Facts: Cheney Brothers was a manufacturers of silks with many patterns, the market life of which typically lasted for only the season. There were some popular and some
