Property I Outline

Property Brewbaker Spring 2017
 
Fundamental Concepts
Different Kinds of Property
Private Property: Can alleviate common pool problems
Common Property: Tragedy of the Commons/ Common Pool Problem/ Externalities: pg 4650 When a situation exists where one of the parties does not have to bear the full weight their actions, there is an externality.  [Some costs or benefits fall on others.] May be positive or negative.
State Property: property owned by the state
 
Property Rights
Right of Possession: cannot loose even if another has an interest in the property. Right of possession may be transferred for an amount of time; ie landlord to tenant
Right of Use: held by owner, but may be shared [ie easement or landowner/tenant relationship]. Right of use does not extend to uses that injure another, ie legal nuisances may be stopped.
Right of Disposition; may dispose of property as owner desires [unless limited by law, property owners can sell property, give it away, leave it to heirs, bequeath, devise in will]. Some property may not be sold, i.e. law decree
Right of Exclusion: exclusive possession of property. May be limited in some situations: common carrier, housing discrimination, ect.
 
Foundational Ideas
Acquisition by Capture: first person to acquire property has greatest right to it. [Easily manipulated because uncertainty concerning what must be first in time. “What” generally determined to further policy goals.] First in Time is First in Right: Wild Animals [“Ferae naturea”] Rule of Capture: Majority rule. Ownership belongs to person who kills / captures / mortally wounds wild animal, not the finder of the animal.
Rule of Sportsman: Ownership belongs to person in hot pursuit with reasonable prospect of capture.
Rule of Escape: A wild animal that escapes from owner’s possession is subject to the rule of capture.
Animus Revertendi: Domestication. “Habit of return” Animal that leaves possession of owners, but has habit of return is not subject to the rule of capture. Owner does not loose right of possession.
Ratione Soli: landowner has constructive possession of animals on land, and thus the exclusive right to hunt.
Rule of Interference: Individual may interfere if they intend to capture animal themselves. However, interference without intent to capture may leave interloper liable for tortious interference.
Rule of Increase: When animals have offspring, the offspring belongs to the owner of the mother.
First in Time Principles
First in time is first in right.
Economic Considerations: societies are wealthier when assets are held by those that value them most.
Protecting Discoverer: possession ought to be protected until someone shows a better claim to the object. As long as the public is willing to set aside possession adverse to public order.
A “Least worst” property rule
Possession (acquiring previously unowned property) / Occupancy (notes 3&4 pg. 11)
Relativity of Title: Title doesn’t have to be perfect, just has to be better than someone else’s.
Rule of Capture: ownership goes to the one who first takes possession of the previously unowned resources.
 
Actual and Constructive Possession
Possession: acquiring previously unowned property
Actual Possession: actual possession. Necessary in some cases to establish ownership
Constructive Possession: legal fiction. Person does not actually have possession, but the law, by analogy, and for any number of reasons, treats them as if they did. In some cases sufficient to establish ownership.
 
Labor Theory [Locke]: if I labor and mix my labor with things that are not mine to start with, I have claim to the finished product.
 
Acquisition by Creation
General Principles of Intellectual Property
Imitation is the heart of competition. “Generally, a man’s property right is limited to the chattels which embody his investment. Others may imitate these at their pleasure” pg 62 note 2
General purpose of Copy Right / IP: to protect just enough that inventors have assurance they need to innovate.
Patent: protects inventions / scientific discoveries and induces investment in these inventions or discoveries.
Trademark: protects a brand, tells us about source/ origin of products. Facilitates investment in building a brand.
Copyright: protects / induces creative efforts.
Copyright: Three Requirements for Copyright
Originality: work must be independent creation of the author and must demonstrate a minimal degree of creativity.
Work of Authorship: literary works, musical works, dramatic works, pantomimes and choreographic works, pictorial, graphic, and sculptural works, motion pictures and audiovisual works, sound recordings, and architectural works.
Fixation: the work must be fixed in some kind of tangible medium, such as printed page, CD, canvas, computer hard drive.
Copyright Policy Considerations:
Copyright infringement claim: 1. Copyright, 2. Other party used the work, 3. Use was wrongful.
Defense to Copyright Infringement: Fair use.
Goal of copyright is incentivizing creativity.
Copyright is a balancing act between encouraging innovation by protecting those who create, and not overly restricting those who want to innovate/utilize existing creative works.
Copyright does not cover any “idea, procedure, process, system, method of operation, concept, principle, or discovery.” or “strictly functional works, such as systems or procedures, which are protected by patent law, not copyright law.”
Fundamental to copyright law is idea/expression distinction. Copyright protects form or mode by which ideas are expressed rather than the ideas themselves. [Facts are not copyrightable, 100 non-copyrightable facts compiled do not suddenly become copyrightable.] Originality does not demand novelty.
Distinction between creation and discovery.
Copyright Fair Use Factors
Purpose & Character of Use: “good fai