Aquisition + Alienation

Question 1

What title rights does the finder have? In other words, how strong is the title of the finder?
[Common Law]
What case establishes this?

Answer 1

Finder has greater rights to found property than everyone except the true owner. Armory v. Delamirie

Question 2

What is California’s law for the finder of property?

Finding lost or mislaid property

Answer 2

Finder of property must turn it into the police, who will advertise to try and find the rightful owner. If they don’t after a set period of time, the finder becomes the owner. If finder does not turn property into the police, they are considered a thief who can be prosecuted by police.

Question 3

What is a finder? What are the elements?

Answer 3

A person who (1) takes control of the lost property and (2) has the intent to maintain possession of the property.

Question 4

Who has the better tittle: Bank note left at shop. Person finds the bank note. Bank or person who finds? What case?

Answer 4

Finder has the better title, b/c the note was never in the owner’s possession. Bridges.

Question 5

Ring found by employee of landowner. Case?

Answer 5

Employer/Landowner. Employee can’t claim title against his employer. Sharman.

Question 6

Owner of land gets boat buried far underground. Case?

Answer 6

Boat is buried so far underground it’s considered to be with the land. Does not go to the finder of the boat [goes to owner of land]. Elves.

Question 7

Hypo: TrueOwner loses watch. F1 finds watch. F1 loses watch in park 1 week later. F2 finds watch in park. F2 later walks into a room, with F1 present, and announces she found a watch in the park. F1 claims the watch. F2 does not want to give. Who gets watch. Title of Finder

Answer 7

First Possession rule. F1 has greater rights to watch than everyone except TO, so F1 gets watch. F2 has greater rights than everyone except TO and F1. Once F1 appears, F1 gets watch.

Question 8

What tort can you sue a Finder who wrongfully keeps for?

Answer 8

Conversion b/c they wrongfully exerted control over property inconsistent with the TO’s rights to the property.

Question 9

What is Replevin?

Answer 9

Suit for the chattel itself; cause of action to recover possession of a chattel

Question 10

What is Trover?

Answer 10

The action for monetary compensation for conversion of real property.

Question 11

What is Locus In Quo?

Answer 11

The place where an event took place.

Question 12

When can the finder prevail on lost chattel found in a renter’s residence? Case?

Answer 12

When (a) the owner had never used the house as his residence and (b) the current tenant did not use the house as a residence either. Hannah v. Peel.

Question 13

What is Subrogation?

Answer 13

A success to another’s right or claim.

Question 14

What is lost property? Example?

Answer 14

Property the true owner unintentionally and unknowingly dropped or lost. Belongs to the finder unless and until the true owner is located.
Ex. If your wallet fell out of your pocket.

Question 15

What is Mislaid Property? Ex? Case Law?

Answer 15

Property the true owner intentionally placed in a given location and then left, or intentionally left intending to return for it later. belongs to the owner of the locus in quo unless and until the true owner is located. McAvoy v. Medina.

Question 16

What is abandoned property?

Answer 16

Property the TO intentionally and voluntarily relinquished, with the intent no longer to own the object and without transferring his rights to another person. Intent must be proved. Belongs to the finder.

Question 17

What is Treasure Trove?

Answer 17

Gold, silver, or currency[in some js.] intentionally concealed or placed underground, with indications it has been so long concealed that the true owner has long since died. Belongs to the finder.

Question 18

What are the elements of a gift?

Answer 18

(1) Intent
(2) Delivery
(3) Acceptance

Question 19

What is proper Intent for a gift?

Answer 19

Intend to give an immediate gift to somebody, immediate irrevocable gift to somebody.

If you intend to give when you die; thats a failed attempt to create a will.

Question 20

Can you intend to give an immediate future interest in something? Case?

Answer 20

O’Keeffe v. Snyder. Court said it was ok. Complicates requisite intent.

Question 21

What is deliver as element of a gift?

Answer 21

You need some kind of delivery of the good

Question 22

What is common law rule on delivery if it is easy to deliver in person?

Answer 22

If easy to deliver in person, have to deliver in person

Question 23

California statute on deliver for gift?

Answer 23

You can hand over a piece of paper as delivery. Most states don’t have that.

Question 24

What if you want to deliver a car or bureau? Do you have to?

Answer 24

You can use symbolic deliver like giving keys to car or bureau

Question 25

Is a key enough to constitute deliver with life insurance policy?
Case?

Answer 25

Newman v. Bost. Not enough to give key, to get the life insurance policy which was inside a piano. Furniture was ok because it was already in person’s room.

Question 26

What is a gift causa mortis? Can it be revoked? Policy?

Answer 26

Gift conditional on the person dying. Can be revoked if the person ends up recovering and not dying, unlike typical gifts which are final.
Policy: Causa mortis should be strictly construed. Allowing symbolic delivery would open the door to fraud.

Question 27

When is acceptance presumed? Case? Basic Fact?

Answer 27

Presumed if the gift is valuable. Maffe v. Loranger [Engagement ring case]

Question 28

What is the Economic Logic behind patents + Copyrights:

Answer 28

A lot of things that are valuable are costly to create, but cheap to copy.

If you allow the thing to be copied, then price of product gets driven down to cost of copying. No return for the person who incurred the cost needed to create.

Question 29

Policy for IP Law

Answer 29

Intended to promote human productivity and progress. Patent laws are designed to protect human ingenuity and scientific advances.

Question 30

Econ logic for Trademarks?

Answer 30

Trademark is on the brand. If product is crummy, then I know you will not buy my trademarked products in the future.

Bonding device saying: Dear customer, go ahead and retaliate against my brand if my product isn’t any good.

Question 31

Trade Secrets Approach?

Answer 31

Common law approach to IP. If you can keep something secret, serves the same function as Patents/Copyrights.

Question 32

What do Copyrights provide?

Answer 32

Protection against copying for artistic/creative works. [Books movies plays records music, etc.] Monopoly over copying. Doesn’t protect independent creation, whereas patent does.

Question 33

What is the duration of a Copyright? Is it easy to prove copying directly? What is the presumption of copying?

Answer 33

The life of the author + 70 years. Hard to prove directly.
Presumption of copying: (1) substantial similarity + (2) access to your original work [you sent them your script, it was played on the radio]. Hard to know when you bring in juries + experts.

Question 34

What do you need to get a copyright? Case?

Answer 34

Fixation + originality. Feist Publications v. Rural Telephone Service Co.

Question 35

What is an argument in favor of a long copyright?

Answer 35

Person who has the right has the incentive to maximize the long-term value and not to exploit it in the short run for cheap benefits.

Tragedy of the commons argument.

Ex: If you own the right to mickey mouse, you don’t want to create the mickey mouse porn channel.

Question 36

What are the elements of a copyright?

Answer 36

Originality (some degree)
Fixation (fixed in a tangible medium. Can’t just be a song you sing, need sheet music + recording and in public)
Work of Authorship (literary works, musical works, choreographic works, sound works, architectural works)

Question 37

What are the exclusive rights given by copyright? What is an important distinction?

Answer 37

(1) Prohibits others from reproducing
(2) exclusive right to create derivative works (if you create a movie, you can make a sequel, spin-off, change the format. Own the right to license that exclusivity as well)
(3) Performing the work publicly: if someone wants to perform your play in public, they have to obtain your consent

(4) Distinction between ideas and expression: Can’t copyright an idea. Star Trek can copyright in characters but not the idea of people going to space and having adventures.

Question 38

What is an affirmative defense to copyright? What are the factors? Case?

Answer 38

Fair Use:
(1) Amount of copying
(2) effect on the market
(3) transformative nature
(4) Purpose and character of use [commercial or non-proift/educational] 17 U.S.C. S.107

Authors Guild v. Google.

Question 39

What is the emphasis on when it comes to fair use or copying?

Answer 39

Whether the unauthorized copying is transformative and does not create or make available a significantly competing substitute for the original.

Question 40

What are patents?

Answer 40

Monopoly over tehnological products or processes [machine, manufacture, composition of matter]. They last 20 years. Public information so it can be the basis for new inventions. Encourages creation and to build on patents.

Question 41

Someone has a patent on ABC, you want to sell ABCD [newer invention]. What do you need to make it happen?

Answer 41

Consent

Question 42

What is the first sale doctrine? Case?

Answer 42

Patent ends with a sale. After you sell a patent you can’t control how its resold

Question 43

What are the elements of a patent?

Answer 43

1. Novelty (compare w/prior art)
   What was known before the particular thing was patented?
2. Non-obvious (sufficient advance over prior art).
   Advances made from prior art: Were they significant enough?
3. Enablement (well enough described to enable re-creation)
4. Utility (Fairly easy to meet)

Question 44

What distinguishes Patent and Copyright?

Answer 44

Copyright = Aesthetic Value

Patent = Instrumental value in making something

Question 45

Is there a common law protection for IP? Case? Should you rely on it?

Answer 45

INS v. AP: can’t own the news, but possibly could own an expression. Court relies on sweat of the brow, AP did all that work to assemble the news and someone took it.

Question 46

Sweat of the brow doctrine

Answer 46

Uncertain, some courts don’t protect it. E.g. nice design of clothing not protected. Gives credit to the person who spent the time and sweat into making the work for it to be easily and cheaply redone.

Question 47

What are the downsides of Patents?

Answer 47

(1) Patent landmines, hard to avoid stepping on someone’s patent when researching
(2) Patent trolls, buy up patents, no intention of developing, sit on them and wait for someone to stand on their land mine so they can sue. Abuses the system. Deters innovation

Question 48

What are the elements of a trademark? What are some cases that describe this?

Answer 48

(1) Distinctiveness [more distinctive = more likely to be approved]
(2) Non functionality [you can’t trademark something functional]
(3) First use in trade [you have to be the first to use it]

Cases: Exxon case: means nothing in any language. Best trademarks are arbitrary.

Pizza Case: Pizza is generic can’t call your pizza place pizza

Booking.com case: Borderline scotus case, people think of it as a brand so good enough

Question 49

Self-Ownership

Question 52

What is public domain? How does it apply in the way we have learned in class? What case applies?

Answer 52

General public has an ownership right in the wet sand. Part of the sand that is generally under the water half the time.
Public owns the wet sands, If the public has a right to access the wet sand then they have the right to get there.
Have to give the public right to access wet sand. Land next to wet sand is regulated.

Bayhead case applies to private beaches as well. Public gets dry sand too. Can’t exclude non-residents from the beach front.

Question 53

Could you expand from wet sand to easement against other people’s property to get to your wet sand?

Answer 53

Yes you have that easement, court says [Bayhead improvement association case].

Question 54

Do you [the public] have an easement to hang out on the person’s beach to enjoy the wet sand?

Answer 54

Yes [Bayhead improvement association case; New Jersey Court]

Question 55

Discuss Copyright Public Domain Case?

Answer 55

Can’t copyright statute books, everyone has the right to have access to it. Compilations containing summaries of cases + keynotes, maybe you can’t own that either, at least the government can’t. [Georgia v. Public Resources]

Question 56

Incidents of Ownership: Do you have the right to absolutely exclude anyone you want from your property?

Answer 56

Yes: If the intrusion didn’t cause any harm but was an intentional intrusion, then you are protected and can sue for punitive damages [Jocke v. Steamburg Homes].

No: If government inspectors or people for safety reasons to look after migrant workers. [State v. Shack]

Question 57

What case gives the right to exclude? What are the circumstances that allow for that?

Answer 57

Mobile home case, want to go across your land. [Jocke v. Steamburg Homes]. Tort, intentional trespass, didn’t cause any harm, but we throw the book and give punitive damages, because you have the right to exclude.

Question 58

When do you not have the right to exclude?

Answer 58

If a government agency like OEO is investigating the conditions of farm workers, came onto the farm land. Owner said “you can’t be here.” Court said you don’t have the right to exclude public inspectors [State v. Shack]

Question 59

What is the power to alienate at common law? Cases?

Answer 59

CL says you can’t put unreasonable restraints on alienation. Hatfield v. McCoy: Hatfields dont want to transfer to McCoy’s maybe reasonable.

To not transfer to anyone under any circumstances ever would be unreasonable.
Davis v. Davis [AirBnB college renting]

Question 60

What is the rule for intentional abandonment of property? Case?

Answer 60

Abandoned property may be appropriated by anyone with the intent to acquire title to the property, unless such property has been reclaimed by the former owner. [Hawkins v. Mahoney (state prison)]

Question 61

Can you get out of making payments on property by abandoning it? Case? What happened?

Answer 61

Pocano Springs, stuck with lemon of real estate. The property is not valuable so they try to abandon the property by not making payments. You can’t get out by abandoning the property because it’s fee simple.

History: Dates back to services to the lord.

Question 62

Do you have the right to destroy personal property if you own it? Cases?

Answer 62

Eyerman v. Mercantile Trust: If it doesn’t harm anyone else. If you can do it in a nice controlled way you have the right to destroy. You can’t create an explosion.

Courts say we are not going to do it when it will create excessive waste for all involved. Author wanting manuscripts destroyed case.

Sperm Case Kievernagel: Guy dies, sperm should be destroyed when he dies. Wife wants baby with sperm of deceased husband. Court rules we will destroy the sperm; carries out intent of the testator.