I. Acquisition of property
A. Possession – physical control over the item and intent to control it or exclude others from it.
B. Principles of discovery
1. First in time gets title
2. Title gives exclusive right to gain possession
3. Title gives exclusive right to convey (transfer property to others)
a. Johnson v. MacIntosh – Indians were mere occupants and did not have title to the land therefore cannot grant to Johnson. US Govt. had title via land ceded by Great Britain. Great Britain “discovered” the land.
b. Europeans had deal amongst themselves that whoever showed up first got title to the property subject to Indian right of occupation.
4. First in time principle
a. The good
i. rewards initiative
ii. promotes spread of civilization
iii. prevents war/disorder
iv. certainty – generally clear about who got there first therefore lower costs in dispute resolution
v. historical precedent
b. The bad
i. Doesn’t reward productive use of land
ii. Scope of discovery uncertain unlike scope of use
iii. System is ethically suspect – those without the resources are left out.
c. Property rights need to be enforced – how? By force – if you don’t have the might can’t enforce legal rights.
C. By capture
1. Ratione Soli – by reason of the land
a. If you own the land you own the animals that are on the land.
b. Landowner has constructive possession of whatever is o
escape impossible (think fish in a net)
d. Pierson v. Post (fox hunting case)
i. Occupancy vs. mere pursuit
ii. Pursuit of a wild animal alone does not constitute taking it into possession.
e. Ghen v. Rich (whaling case)
i. Custom and usage of the industry
f. Keeble v. Hickeringill (duck case)
i. Malicious interference with livelihood.
3. Rule of capture applies to more than just animals – think about the baseball example.
D. By creation – property interest in the fruits of one’s own labor
1. When you mix labor with something that is publicly owned you gain ownership – John Locke.
2. Tension between notions of fairness and public interests
3. Use legislation to provide protections.
4. What is permitted
a. Common law rule: A man’s property is limited to the chattels which embody his invention. Others may imitate these at their own pleasure.
b. Copying except as precluded by statute
i. Examples: Cheney Bros v. Doris Silk Corp and Smith v. Chanel
5. What is protected
a. Hot News
i. Expense to Plaintiff
ii. Time sensitive information
iii. Free riding
v. Reduce incentive to produce or threaten service
Example – contrast INS v. AP with NBA v. Motorola