Discovery, Creation, and Accession Flashcards
1
Q
Discovery
A
- loosely refers to collection of situations in which someone establishes ownership of an object by being the first to claim it
2
Q
Discovery vs. First Possession
A
- both sources of original title to property, BUT discovery different from first possession b/c relevant act is a claim of ownership, rather than possession
- actual possession isn’t as important in discovery - claiming = form of signaling + focus is more on intention + notice
3
Q
Discovery and Colonization of the Americas
A
- first European power to claim an area populated by non-Europeans would have dominion or sovereignty over it, subject to rights of occupancy in the indigenous population
- indigenous population had right to continue to occupy land, but only until “extinguished” by colonizing power - could basically extinguish at any time + allow European settlers to move in and occupy
- most titles in US trace back to this set-up
4
Q
Johnson v. M’Intosh - Facts
A
- two conflicting titles
- Johnson traced title back to group of white settlers who purchased deeds to certain lands in Illinois from two Nat. Am. tribes (Illinois and Piankeshaw) in 1773 and 1775
- M’Intosh traced title to grant from US in 1818 (US had acquired the land by treaty w/ the tribes)
- Nat. Am.’s not represented in the proceedings
5
Q
Johnson v. M’Intosh - Decision and Reasoning
A
- Marshall invoked principle of discovery - said US traced its claim back to Cabot’s discovery of North Am.-> therefore US had sole right to determine who could make deals w/ Nat. Am to extinguish their rights of occupancy
- said this meant Nat. Am.’s had nothing to convey to Johnson under nemo dat
6
Q
Johnson v. M’Intosh - Evaluation of Nat. A. Rights
A
- Marshall dismissed Nat. Am. rights - said native use and occupancy of the land didn’t count as possession in the Western sense (not intensive or exclusive enough to count as property)
- contrary to this contention, history shows Nat Am’s did have property concepts - mixed private property in implements w/ various mixtures of private property, common property, + open access for agricultural + hunting uses
7
Q
Johnson v. M’Intosh - Underlying Theory Behind Decision
A
- Marshall expressed reservations about morality of principle of discovery, but treated its use as inevitable - many think he only decided the way he did b/c didn’t want to mess w/ thousands of titles in US that depended on validity of acts extinguishing Indian title
8
Q
Impact of Discovery on Colonization
A
- book says lessened potential deadly conflicts between European powers
- for Nat. Am., meant they faced monopsony (monopoly on buyers side) in selling their rights to land (since gov could determine who they could sell to) - further depressed prices (which were already sometimes impacted by deception, coercion, violence, + disease on Nat. Am. populations)
- book says states might’ve imposed harsher policies on Nat Am’s w/o fed gov though
- clarified title
9
Q
Mining Law
A
- relies on discovery - claimant must locate + discover valuable mineral deposit (discovery doesn’t imply full control in possessory sense - just being first to identify + claim the resource is key)
10
Q
Creation
A
- resource can be said to owe its existence at least in part to prospective owner’s act
- most relevant to intellectual property
11
Q
Info vs. Physical Resources
A
- information as a resource is special - nonrival + more nonexcludable than typical tangible resource
- but info is costly to produce - high fixed costs of production are incurred by first producer only (vs. close to zero for others)
- dynamic incentive problem (how do you get people to create the info?) but no allocative problem (one person’s consumption doesn’t interfere with another’s)
12
Q
Why do you need property concept of information at all?
A
- need to give people an incentive to discover and develop stuff
- there’s no problem on the consumption side (the more people that use it, the better - don’t interfere w/ each other’s use at all)
- incentive resolves problem of provision of info, but could create issues on consumption side that weren’t there before
13
Q
INS v. AP - Facts
A
- INS wasn’t reporting on WWI the way Britain and France wanted, so they got kicked out of briefings
- INS started copying or using (with rewrite) uncopyrighted reports from AP’s newspapers for its own newspapers (note that at this time, copyright didn’t attach immediately as it does now - would’ve required registration, impractical for news)
- AP sued INS
14
Q
INS v. AP - Holding
A
- majority held the AP had a quasi-property right in the news it gathered + INS had misappropriated this right
- “quasi” b/c doesn’t bind the whole world - very careful to limit misappropriation of hot news to competitors (didn’t want to declare news a thing from which all others could be excluded)
- distinguishes property right good against the world from rights as between competitors
15
Q
INS v. AP - Brandeis Dissent
A
- Brandeis concerned that majority has functionally created a new property right, beyond those sanctioned by Congress - legislature better suited to handle the complex problem
- default is free competition - unless narrow IP rights apply, info is free to common use (unless there’s a patent, you’re free to imitate)
16
Q
INS v. AP - Custom
A
- holding may have some basis in custom - news orgs generally respected each other’s rights to stealing scoops
