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Intellectual Property
University of Dayton School of Law
Reilly, Tracy

Tracy Reilly Intellectual Property Fall 2013

I. Introduction to Intellectual Property:

a. Categories of Property

i. Real Property: interest in land

ii. Personal Property

1. Chattels

2. Intangibles

a. Intellectual Property: protectable interest in valuable “information”

b. Umbrella of Rights:

i. Federal

1. Patent Act

2. Copyright Act

3. Trademark Act (Lanham Act)

ii. State

1. Trade Secret Law

2. Misappropriation

3. Unfair competition

4. Rights of Publicity

5. Contract Law

6. State Trademark law

7. State Moral Rights laws

c. IP House Concept:

i. Subject matter

1. How to get in the house?

a. How does one acquire rights in IP?

ii. Rights

1. Once inside the house, what is one allowed to do?

iii. Defenses/limitations

1. How to kick original IP owner out the back door of house?

d. Theories of IP:

i. Utilitarian: net social welfare maximized

1. Balance between exclusive rights that stimulate creation while also offsetting those rights curtailing widespread enjoyment

2. Most IP products easily replicable so copiers only have production costs which allows them to undercut original creator

3. Non-rivalrous – ones enjoyment of IP product does not mean others cannot enjoy

ii. Labor: putting labor into raw materials gives creator natural right to the fruits of that labor exclusively

1. Criticism: only legitimate if others do not suffer net harm

iii. Personality/Personhood: privacy rights are fundamental to human needs

1. Policy should strive to allocate entitlements to resources in the fashion that enables people to fulfill needs

2. Movement towards moral rights

iv. Social-planning: achievement of just and attractive culture

1. Copyright term shortened, increasing public domain in order to allow for more creations

e. Against IP:

i. IP slows innovation and exploits 3rd worlds

ii. IP is an attempt to create an artificial scarcity in order to reward few at expense of many

1. Ideas are public but “creators” want private returns

iii. Strategies against IP

1. Civil disobedience

2. Promotion of non-owned information

3. Fostering a more cooperative society


i. Look to selection, coordination, and arrangement

ii. Facts are discoverable, but not creatable

1. Want facts to be transferred to create new works

c. No more sweat of brow doctrine – copyright was rewarded for hard work

5. Meshwerks: digital wireframe models not protected by copyright

a. No copyright if work does not involve any expression apart from raw facts in world

b. If work does not owe origin to that author, must add something to the design to create incremental contribution, which can be copyrighted

c. Better contracts, might have avoided

d. Merger doctrine – cannot have copyright in work that is the only way to express the underlying “thing”

e. Dimensional shifting – taking 3D to 2D; is not in and of itself enough to get copyright

f. About the result of the creative process not the process itself

6. Slavish copying of prior works cannot justify copyright protection