Outline - Property - I - Acquisition

Property (2005-2006)

I. ACQUISITION

1. Capture
   1. First in Time [Pierson v. Post]
      1. Majority - First to capture
      2. Minority - First "reasonable prospect"
   2. When custom establishes procedures for settling disputes, use custom. [Ghen v. Rich]
   3. Constructive Possession - A wild animal that frequents a property is part of that property by animus revertendi, and one who chases it off is maliciously interfering with trade. [Keeble v. Hickeringill]
   4. Rule of Increase - Possession of the offspring belongs to whoever owns the mother.
   5. Demsetz
      1. Externalities
      2. Tragedy of the commons – Nobody has an exclusive right.
      3. Tragedy of the anti-commons - Everyone has an exclusive right to common property.
      4. Freeriding problem
      5. Transaction costs
      6. Bundle of rights
2. Creation
   Physical Property
   
   1. Property in one’s person [Moore v. Regents – Plaintiff has no property right in his excised body part]
   Intellectual Property
   
   2. Trademark
      1. Anticybersquatting Consumer Protection Act (ACPA) – Cybersquatter is liable to owner of a protected mark if that person had a bad faith intent to profit from that mark. [Virtual Works v. Volkswagen]
      2. Celebrity "right of publicity" (widely recognized) – Property interest, assignable during life, descendible at death. Posner: Rooted in right of privacy.
   3. Patents
      1. 35 U.S.C. § 101 - Inventions patentable: Any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.
      2. Chemical extracts – Process for purifying naturally occurring chemical, as well as purified chemical, both patentable. [Parke-Davis (1911)]
      3. Laws of nature – Mathematical formulae not patentable; implementing or applying a formula in a process otherwise patentable is protected. [Diehr]
      4. Composition of matter – Simply rearranging bacteria is not patentable. [Funk Bros.]
      5. Living things are not patentable. [Chakrabarty – Process for producing and for disseminating bacteria is patentable; bacteria themselves are not.]
   4. Copyright
      Subject Matter
      
      1. Originality
         1. Independent
         2. Modicum of creativity
      2. Facts are not copyrightable; compilations of facts may be, if presented in an original way. [Feist v. Rural – Phone book not original compilation.]
      3. Ideas are not copyrightable. [Baker v. Selden – Text on bookkeeping methods not copyrightable.]
      4. Subject matter with limited forms of expression not copyrightable. [Morrissey – Sweepstakes rules]
      5. Where form and function inseparable, no copyright. [Brandir v. Cascade – Bike rack as minimalist art]
      Imitation
      
      6. News is not copyrightable; but there is quasi-property interest in gathered news, so interference where business profits from transmission constitutes unfair competition. [International News Service v. AP]
      7. Copyright gives right to exclude others from enjoyment, but not imitation. Right to exclude imitation is monopoly. [Cheney Brothers – Imitation of silk patterns okay.]
      8. Baird – Balance right to information and promotion of market economy.