1. Ideas of Property and First Possession: Acquisition of Property by Discovery, Capture, and Creation
a. Acquisition by Discovery/Conquest
i. Discovery: the sighting or finding of unknown/uncharted territory.
ii. Conquest: the taking of possession of enemy territory by force followed by formal annexation of the defeated territory by the conqueror.
iii. Johnson v. M’Intosh
1. J tried to buy property from M who claimed he received the land from Indians.
2. Conquest gives ultimate title to land.
3. Discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.
4. Ejectment: an eviction, to attempt to remove someone from their property.
d. Labor theory of Property
i. John Locke: By mixing an object with ones labor it makes it yours.
ii. Haslam v. Lockwood
1. H found manure and raked it into heaps where he was going to take it away the next day. The next morning L took the pile of manure.
i. L might cite Pierson in Pierson v. Post, because H unsuccessfully captured the manure.
ii. H argues that he physically touched the manure and made it into an easily movable item, i.e. he mixed it with his labor.
2. Court ruled with H because he “had changed its original condition and greatly enhanced its value by his labor…”
b. Acquisition by Capture
i. Pierson v. Post
1. Po chasing fox. Pi came out of nowhere and shot and killed it and took it for himself.
2. Pursuit alone vests no property or right, the animal has to be taken or mortally killed to justify claim.
3. The way to get property is to capture it.
4. Applies to oils, minerals, and gas.
5. Policy implications to promote killing of foxes, i.e. “good behavior”.
c. Acquisition by Creation
i. Cheney Brothers v. Doris Silk Corp.
1. CB made silk patterns attempted to get patent, DSC copied product and undercut.
2. To exclude others from the enjoyment of a chattel is one thing; to prevent any imitation of it, to set up a monopoly in the plan of its structure, give the author a power over his fellows vastly greater, a power which the constitution allows only congress to create.
b. Intellectual Property
i. No common law IP rights
ii. Grant a limited monopoly over the protected material.
iii. A monopoly to promote creative activity, but limited in order to advance competition.
iv. Congress created copyrights © , patents, and trademarks ™
v. Common law intellectual property
1. Copyright- books, stories, movies, songs
2. Patent- inventions, processes
3. Trademark- associated with selling something, i.e. logo of a company
oSmith v. Chanel, Inc.
· Can a competing company mention their competitor? “Smells like Chanel No. 5”.
· Companies can mention their competitors in taglines, commercials, etc.
· A copyist serves an important public interest by offering comparable goods at lower prices.
oNichols v. Universal Pictures Corp.
· Cannot copyright an idea, must copyright a complete work.
oDiamond v. Chakrabarty
· If you manufacture something new and useful (Micro Bacteria for oil spills) can be copyrighted. Cannot copyright nature.
oWhite v. Samsung Electronics America, Inc.
· Exception common law IP right – you have a right to your general character, persona.
§ Satire still ok, when its fair use, when you know its satire like SNL
oMetro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.
o Difference between what YouTube does and what Grokster did?
· One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.
§ What Grokster did.
· Mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability.
§ YouTube has a plan to discourage copyright infringement. Sony VCR example.
Ravens and Maria Carey Cases.
To show copyright infringement must show:
Access to copyrighted material.
Substantial similarity between the two works.
Right include/exclude from property.
When you own property you have a bundle of rights.
Right to use the property.
Right to sell.
Right to transferability (sell).
Right to include/exclude.
i. State v. Shack
i. Migrant workers living in farm. If didn’t let the Fed. Agencies on mans property then the migrant workers wouldn’t have access to doctors or their basic rights.
ii. Non-owners have a right of access to property based on need or on some other important public policy.
iii. Illustrates the exception to thehome is castle rule (right to include/exclude whomever they choose)to protect especially vulnerable people, including migrant workers.
ii. Jacque v. Steenberg Homes, Inc.
i. Land owner had right to tell moving truck not to cross his property.
ii. Private landowner’s right to exclude others from his/her land is one of the most essential sticks in the bundle of rights.
2. Subsequent Possession: Acquisition of Property by Find, Adverse Possession, and Gift
a. Types of subsequent possession:
nual
i. Physically handing the person the object. Safest way.
ii. Constructive
i. Handing over the means of possession and control
ii. Ex: Give the keys to the car, the car is too heavy and difficult to move or manually deliver.
iii. Give someone a bank account, the number of the account.
iv. Something that gives access to the gift.
iii. Symbolic
i. Paper/Letter that states that A is making gift of property to B.
ii. Courts are still struggling with whether symbolic delivery constitutes a gift.
iii. Acceptance by the donee
i. Courts presume acceptance upon delivery unless a donee expressly refuses.
2. Two kinds of gifts a person can make when they are alive.
i. Inter vivos: more common, while someone is alive, during your life.
ii. Causa mortis: a gift because of death/when death is impending.
§ If donor ends up surviving, then the gifts are revoked.
§ Courts prefer that people use the method of will or testamentary gift.
Newman v. Bost
After giving the keys to much of the furniture in the house to Newman (P) the decedent pointed to the furniture and said to Newman (P) that he was giving it all to her. In one of the pieces of furniture (the bureau) was a life insurance policy.
Court makes it more difficult to give gifts: symbolic delivery is not allowed.
Symbolic delivery of a gift is not effective. Constructive delivery is allowed only when it is impractical to deliver actual possession.
