Deb Bergman
Petherbridge Property Outline 2010-2011
I. THE ACQUISITION OF PROPERTY RIGHTSA. GENERAL – WHAT IS PROPERTY?
A bundle of rights between people with respect to things (tangible and intangible). Usually consists of up to four rights, though many forms of property consist of less or have them to a lesser extent:
1) To possess
2) To use
3) To exclude others from possessing or using
4) To alienate (dispose of the property by sale or gift)
B. THEORIES OF PROPERTY/JUSTIFYING PROPERTY LAW
1. Natural Right Justifications:
William Blackstone – First Occupancy Theory (associated w/ but didn’t create)
Recognizing more permanent rights in ppl who are first to grab something out of the commons (rather than transient rights, just while you’re in possession of it) b/c:
Preserves peace and order – no more private armies
Encourages productive use of resources by allowing ppl to hold them for longer than the moment in which they actually possess them. Ppl can now become drs/lawyers/etc instead of running around grabbing food for themselves
John Locke – Labor Theory
How do you become the owner of stuff you produce?
You own yourself and your labor
Once you mix labor with/put work into something, then you should own that too.
1st one to put work into it is entitled to it.
Property is a natural consequence of your existence – normative
Problems with this – scale of the mixing/productivity of the work
Someone paints on a canvas. Who owns it? Canvas-maker or painter?
Pour bottle of pepsi into the ocean, do you own the ocean?
2. Philosophical, not natural right, Justifications:
Jeremy Benthum – Utilitarianism – fundamental philosophy of property law
Purpose of law is to make everyone’s life better (property law is a means to an end). Judge rules by whether society is better of with them or without them.
Rights b/w people in relationship to things (it’s not about you and your chapstick, it’s about you and someone else w/ relationship to your chapstick)
Problem with this – who decides what is good for society?
Harold Demsetz (pg 12 of class notes)
Externality – the effect of someone’s use of are source on other people that they’re not forced to take into account (can know about it tho).
Are not always problematic – ex: where resources are plentiful and ppl are concerned w/ other things, it may not be socially harmful
Internalizing – transaction costs
Holdouts – hold out until the buy-out price goes way up
Free-riders – expect others to put in the buy-out money instead of themselves
Property rights develop when – internalizing the externality is cheaper than the externality.
Tragedy of the commons – overuse/depletion – when transaction costs keep socially beneficial transactions from happening = overuse of communal resources that ppl should be able to manage but can’t b/c transaction costs are too high
Tragedy of the Anti-commons – underuse – each person owns a part of something needed to make something bigger. The bigger thing won’t be made b/c transaction costs are too high to make things that are socially useful.
Property rights can keep transaction costs down – when you have to negotiate with the entire village about the risk to communal property if you cut a tree down vs only with the four people who own land around you.
Coase Theorum – in a (fictional) world w/out transaction costs, it won’t matter who you give property rights to. Things will move towards everyone’s social benefit.
Who you give property rights to decides who gets rich and who doesn’t. Rights make someone wealthier than someone else = moving money around.
C. TANGIBLE PROPERTY RIGHTS
Rule of Capture – First to grab something out of nature (possess something) establishes their ownership over it – Pierson v. Post.
1. What if someone owns the land?
Landowners don’t own wild animals on their land just b/c its their land. So we have laws against trespassing. Trespassing builds conflict, economic waste (ppl spend time figuring out ho to steal instead of how to do other productive things)
2. What if the animal escapes?
Generally courts say the animal returns to its natural state. Finder’s ownership rights are extinguished.
Pierson v. Post
Property rights in wild animals by possession where you’re the first to: 1)Intent to possess it and 2) kill it, capture it (deprive it of its natural liberty), or mortally wound and pursuit it w/ intention of appropriating it. Awards the kill.
Policy = makes it easier to adjudicate a case and gives more notice when you have a bright line rule that’s certain its application –better for peace in society. Promotes competition (you have to get better at killing foxes if you want to own them).
Dissent: pursuit with a reasonable prospect of capture should give property rights. Awards effort.
D. INTANGIBLE PROPERTY RIGHTS
Rule:
There are no property rights in facts
Cheney Bros rule: People’s property is limited to their chattels and others can imitate these at their pleasure. If you want to have property rights in something intangible, you must:
1) Find a statute that gives it to you (like the patent act)
2) OR find CL that gives it to you
Like in INS which is still good law, though Cheney Brothers is dominant rule (no property rights). Hardly any CL so INS is probably limited to its facts
3) If you can’t find it there, there is no property right and people can copy it.
Theory:
Tragedy of the Commons and Intangible property: diff than tangible b/c there is no threat of overuse – knowledge/information can be used by many people at once/non-rivalrously (unlike a pen) so tragedy of the commons may not be implicated as strongly
Tragedy of the Anti-Commons and Intangible property: information could be underused if ppl stop putting in effort b/c others can use it by stealing it from you w/out effort.
Cases:
INS v. AP
Facts: INS steals APs news from bulletins (after publication). Argues news is public info and socially valuable.
Holding: Court holds that as to the two competitors, AP had property rights in the news that survives publication b/c of unfair business practices concerns. INS is unfairly competing b/c they don’t feel the cost of news collection
Cheney Brothers v. Doris Silk Corp.
Facts: Doris copies Cheney’s successful patterns (which they’ve paid people to create and also created many other patterns that aren’t successful) and undercuts their price.
Holding: Unless statute or CL gives you a property right to something intangible, no rights and ppl can copy it. Competition is good b/c it lowers the price of goods and creates better products.
POSSESSION BY CREATION AND INTELLECTUAL PROPERTY
Theory for giving property rights in intellectual property:
If protecting information is bad b/c it limits use, there must be a good utilitarian reason for having it that outweighs the bad:
Encourages ppl to innovate by allowing them to reap the benefits/profits of their innovation.
We help ppl define their existence when we give them rights to property.
Creates defined, discrete package of rights out of otherwise intangible information that ppl can now transact around. Promotes putting info into public sphere b/c you’re not afraid to share it. Encourages disclosure and dispersion of information. This means other ppl can use the info to engage in more innovative activity.
E. COPYRIGHT
1. Copyrightable subject matter:
1) Applies to original works of authorship
Required originality is very low bar
Facts:
Facts are not copyrightable b/c they are not original and copyright rewards originality, not effort
Compilations of facts could be copyrightable (though copyright is thin – only as to the expressive/arrangement aspect of it) IF they are compiled in a creative way.
But you could spend 5 yrs working on a phone book and if it’s not creative, you get no copyright b/c it’s only uncreative facts – see Feist v. Rural
Copyright is cabined by not protecting facts but allowing protection of: selection, coordination, compilation, arrangement/relation of facts
Government works:
Generally, no copyright in gov’t works (like judge opinions or statutory text).
2) Fixed in a tangible medium of expression
Much less disputed than original authorship
Words on paper, records, any way you can tangibly fix info and reproduce it from whatever you’ve fixed it on.
Ideas:
Ideas are not copyrightable b/c they are not tangible and copyright rewards tangible things not intangible creativity
Otherwise, we would give ppl a monopoly on ideas and that would .
Copyright protection for an original work does NOT extend to ideas, procedures, processes, systems, methods of operations, concepts, principles, or discoveries regardless of the form in which they are described. Only to original works that describe these ideas. Not the ideas themselves. (Section 102). See Baker v. Seldon.
Property rights start as soon as the tangible thing exists and last until 75 yrs after the author’s death.
Strong property rights of copyright lead to policy of wanting to narrow the scope of protection
Fact/Expression Dichotomy – Copyright protects expression but not the factual aspect of the things you express.
Feist v. Rural
Facts: co takes names out of phone book to publish their own phone book, which covers a much larger geographic area.
Holding: ct says no copyright infringement b/c copyright didn’t cover what Rural took. It was only facts compiled in a completely unoriginal way – alphabetical order.
Idea/Expression Dichotomy – useful information is not protected by copyright. Copyright protects expression but not the ideas/useful functional aspects of the things you express.
Baker v. Seldon
Facts: Seldon made book explaining how to do accounting w/ forms at the end. Baker used those forms. Seldon claims copyright infringement
Holding: Close relationship b/w utility of the forms and method of bookkeeping -> thin copyright -> only covers the book not the system so no infringement when someone uses the system, necessarily using the form.
Merger or Idea/Expression Inseparability – an extension of Baker v. Seldon - the idea and what you have to do to express it are so closely intertwined that you can’t really pull them apart. Giving copyright to the expression essentially gives copyright to the idea so therefore there can be no copyright.
Morrisey v. Procter and Gamble Company
Facts: Morrissey wrote sweepstakes rules. P&Gs rule 1 is very similar to Morrissey’s.
Holding: No copyright. There is originality here but when an idea can only be expressed in very few ways it’s not copyrightable b/c it would create a monopoly over the idea and that’s not what copyrights do.
Other courts say there is copyright but it is very thin
2. Copyright in pictoral, graphical, and sculptural works
Rule:
A sculptural work must have expressive features separate from and capable of existing independently of the utilitarian function of the sculpture to be copyrightable
Conceptual separability – exists where design elements can be identified as reflecting the designer’s artistic judgment exercised independently of functional influences = copyright. If aesthetic and functional are merged then it’s not conceptually separable.
Brandir v. Cascade Pacific
Facts: Guy creates the ribbon bike rack. First it’s a piece of art but he changes it (makes it more symmetrical) and sells it after a friend tells him he could make money.
Holding: no copyright b/c it would go beyond aesthetic to the utilitarian and that’s not copyrightable.
Dissent: if an ordinary reasonable observer perceives an aesthetic concept not related to the article’s use, there should be copyright in that.
3. Scope of the Exclusive Right of Copyright
Must first determine:
1) What is copyrighted;
2) The scope of the copyright based on the subject matter.
Infringement = copyright trespass. Two types of infringement:
1) Copying –
No liability where D created work independently w/out knowing of the copyrighted work but this is hard to prove.
2) Improper Appropriation – are the works substantially similar in the eyes of an ordinary/reasonable observer? Defines the boundary of the right to the property.
Fair Use Doctrine – a limit on the scope of the right – you can copy some stuff for a good purpose (criticism, comment, news, teaching, scholarship, research) up to a point where it becomes unfair. Purpose is to encourage use of information, etc. Copyright Act section 107. Four factors to aid in determination:
1) Purpose/character of the use (commercial nature vs non-profit education)
2) Nature of the copyrighted work
3) Amount and substantiality of the portion used in relation to the copyrighted work as a whole
4) The effect of the use on the potential market for – or value of – the copyrighted work.
Nichols v. Universal Pictures
Facts: Man writes play about Jewish/Catholic families in NYC in the 20s. Son and daughter get engaged, have baby, families reconcile. Universal makes a movie with a similar general theme.
Rule: Stereotypic characters/plots are not copyrightable. They are part of the public domain. As you get more specific, from plot to details to actual words of the play, you get more copyright protection.
Holding: No infringement b/c none of the details were taken, only the basic general plot.
Harper & Row v. Nation Enterprises
Facts: Pres Ford signed K w/ H&R to write a book. H&R signed K w/ Time to release an exclusive teaser. The Nation got a hold of it and published juicy bits of the manuscript. Time voids the K.