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Property I
University of Connecticut School of Law
Utz, Stephen

Specifically Keyed to:
Professor Utz – 2009
Property – Dukeminier, Krier, Alexander, & Schill – 6th ed
–          Definition of property varies from culture to culture
–          Whatever interest in a thing that is protected against invasion by others in the legal system
Locke’s Labor Theory: you own yourself and your labor, thus anything unowned and mixed you’re your labor is yours.
Acquisition of unowned things:
By Discovery: Discoverer (usually a country) owns all the land discovered (same for conquest)
Johnson v. M’intosh
–          Johnson purchases property through Indian tribe prior to M’Intosh purchasing the same property from government
–          Q: Who possesses the land?
–          M’Intosh
o       Indians had a right to occupancy granted by U.S. government, not a right to transfer title
o       This is because Europeans discovered the land, and because they “conquered” the Indians
o       Conquered Indians have a right to occupancy
By Capture
–          Of Wild Animals
Pierson v. Post
–          two parties try to capture a fox on unowned land
–          Post chases the fox first but does not capture it or wound fox
–          Pierson intervenes and captures fox, knowing Post was chasing
–          Q: Who deserves possession?
o       Pierson
o       Post did not own the fox until he had actual possession
o       Rationale
§         Promotes certainty and peace
o       Criticism
§         Could have also followed sportsman custom.
§         Rule of “reasonable likelihood of capture” would conduce to more fox extermination (public policy argument)
–          Custom
–          Customs arise in an industry to maximize benefits of the group.
o       Ensures individuals do not grab benefits at the expense of the group as a whole
o       In the long run members will be better off by conforming to the rule
Ghen v. Rich
–          Whalers use marked lances to kill whales that sink to bottom of the ocean and then surface later.
–          Custom – if a 3rd party finds dead whale first, notifies whaler and gets compensation
–          3rd party finds whale killed by Ghen, but instead sells the whale to Rich
–          Q: Is Custom used to determine possession?
o       Yes
o       Custom required because it is impossible to take immediate possession after kill
o       PP argument – If Custom isn’t followed à then no incentive for whalers, deprives society of the benefits of whale hunting
Court Rationale for Property Rights
Courts try to create rules that
(1) reward efficiency and productivity,
(2) are easily enforceable,
(3) consistent with societal expectations and norms, and
(4) Culturally fair
Keeble v. Hickeringill
–          Keeble creates decoy pond to trap ducks for food
–          Hickeringill shoots shotgun to scare ducks away
–          Q: Is there a claim for interference with property rights?
o       Yes – Hickeringill maliciously interfering with Keeble’s lawful activity
§         Not the same as interference by Fair Competition
·         Competition improves society, Hickerngill’s activities obstruct a societal benefit (food for Keeble)
–          NOTE – as always, this case relies on societal norms where eating ducks for food is considered a societal benefit
Acquisition by Creation
Copyright – right to own the reproduction of your creation (like a novel)
Problem – Exclusivity – how much exclusivity does the property owner deserve?
–          especially when copyright is intangible (ex. information)
–          Strong public policy that availability of information benefits society
International News Service v. Associated Press
–          Both parties are news groups
–          AP gathers information and writes a story, INS steals and prints story with same information before AP can print
–          Q: Does AP have a right to restrain INS’s story?
o       Yes, it was a misappropriation for INS to copy AP’s story before publication
§         Focus on competition in the industry
·         Time sensitive, AP expended money and effort to get information
·         Newspaper would not print if they couldn’t protect their stories
·         Property right invaded at the moment AP is about to profit
Cheney Brothers v. Doris Silk Corp.
–          Plaintiff designs many fabrics for the season
–          Doris copies most successful design and sells at half price
–          Q: Does plaintiff have a remedy?
o       NO, by producing so many designs, if they couldn’t be copied, would create a monopoly and prevent competition
Smith v. Chanel, Inc
–          Company creates perfume that it advertises as the equivalent of Chanel, but cheaper
–          Q: Actionable?
o       No, perfume is unpatented
o       PP – imitation encourages competition, prevents monopoly
Rule: Court in these two cases weigh the unfairness of protecting imitators with the harms of a monopoly (higher prices, less innovation, less accessibility to goods). It’s usually case by case.
Douglas Baird – (argument for) Common Law Intellectual Property
–          Because IP is intangible, another pe

osts of infringement to establish this rule
To what extent do you have property rights of your own body?
RULE? – (from Moore) –body parts can’t be sold, but seems like they can be transferred
Moore v. Regents of the University of California
–          Moore agrees to have spleen removed, which is used (unknown to him) to patent a cell line
–          Q: Is there conversion liability for moore?
o       COURT – No, Moore does not have a claim
o       Moore did not intend or expect to keep it
o       To hold otherwise would obstruct research
o       Problems in this area better suited for Congress
o       Conflict in balance b/w:
§         Moore’s right to his body parts and autonomy vs. scientists’s right to develop cells from Moore’s discarded spleen
Bundle of rights – dominion (here over one’s body), control, disposition
Court – unsure if they should apply property law to this case – **possibly Ask Utz?**
–          right to possession often means the right to exclude, but should that same right be extended to IP?
o       The owner can still benefit fully
o       To what extent should the right to exclude cover tangible property?
RULE: there is a property right to exclusion, but it is NOT absolute
Jacque v. Steenberg Holmes, Inc.
1997, Wisconsin
– Homes delivers a mobile home by driving through Jacque’s property after he was told not to
–          Q: Liability and damages?
o       Yes
o       Protection of land requires a right to exclusion
o       Society has interest in punishing those that violate. Otherwise citizens will not feel secure
State v. Shack
1971, NJ
– Farm owner, Tedesco, barred legal and medical aids from visiting an immigrant farm worker
–          Q: Does Tedesco have a right to claim trespass?
o       NO
o       PP – need to protect human values, and limited to that end. Immigrants needed help, and would not serve justice if owner could obstruct aid
o       Tedesco’s right to exclude ended when immigrants needed reasonable access to legal & medical aids
o       Rights are relative