Week 2 Flashcards
Creation applies almost exclusively _____
to intangibles
One thing that is weird about creation is you have to jump from creation ____
almost immediately to legal right
Difference between tangible vs. intangible goods
tangible=excludable and rivalrous
intangible= non excludable and non-rivalrous
Patent
20 years (new, useful and non obvious invention)
Copyright is for ___
og works of ownership (99 years)
Trademark lasts ___
as long as owner uses them
Argument for creation property
lockean fairness, incentive to innovate, exists for a limited time
Argument against creation property
incentivize collobaration
INS Holding
Injunction; transmitting “hot news” is an unfair competition practice
INS Rule
News org has a “quasi-property” right in the hot news it reports
INS Majority rule reasoning
(1) it is the object of profit
(2) significant effort goes into collecting the news
(3) Not creating right against the world, just INS
(4) not new property right, just elaboration of unfair competition
INS Brandeis dissent
Extending property rights could curtain free use of knowledge and ideas
INS is a debate over whether creating new property right ___
is a Q for Congress or not
Why did INS need to say quasi property
equity can only intervene to protect property owned at the time
INS majority insists that they are not ___
creating new property right
INS theory has not applied to other things like ___
fashion designs
Midler rule
right of publicity violated when someone’s identify is used without their consent and for a profit
The right of publicity is only __
for celebrities
INS may have been decided that way because of the ___
natural first mover advantage
If an item is lost, the ____ gets it
finder
If an item is mislaid then the ___ gets it
LO
Haslem says that possession may remain for ____
reasonable time after actual physical possession ends
Haslem holding
H appropriated manure to own use by improving it (sweeping into piles) and therefore had possession for a reasonable time for removal
Haslem analogizes to a seaweed law that said __
24hour right if gathered on public beach
Haslem reasoning
(1) valuable for manure but nuisance on city streets
(2) right to finish what you started?
(3) posting sign alone won’t establish possession (Brazelton)
(4) time constraints to determine if re-abandon
Why does Haslem imply right to finish what you started
L did arguably as much labor as H
Armory rule
finder title good against all but the true owner
Armory jury damage instructions were to award a sum which in the absence of the jewel was to equal ____
worth of a similar jewel of the finest type
Armory reasoning
(1) lawful possession, didn’t obtain by theft or fraud
(2) relativity of title (not absolute)
(3) bailee for True Owner (TO)
Hannah says that generally the first finder has possession ___
against anyone other than TO
Hannah distinguishes possession by hand grasp from possession by ___
extension of the land
If American court, Hannah probably would’ve found that the brooch was ___
mislaid (goes to LO)
Hannah reasoning
(1) D/LO never resided in the house
(2) D never had possession of premises or the brooch
(3) P acted in good faith, didn’t trespass to get brooch
(4) Brooch not embedded in the land
In Elwes a viking boat was found to be embedded in the land so it went to the ___
LO
Goddard (meteorite case) says that ____ wins over ___
LO, finders or tenants in possession
If object is on top of the ground, ___ has a better shot of ownership
first finder
If object is buried in the ground, shift to ___ and award to the ___
accession, LO
In Goddard, the meteorite is not abandoned because ___
it arrives by nature
Merrill says that the meteorite is the ultimate ___ but the court compares it more to __
avulsion, accretion
If Finder v. Converter then ____ wins
finder, don’t want to reward thieves
If Finder 1 vs. Finder 2 then ___ wins (____)
Finder 1, Clark lost logs case
Why F1 over F2?
TO more likely to recover it
Clark rejects a ____ saying can’t use ___ to negate the claim
jus tertii defense, third party ownership
If Converter 1 vs. Converter 2 then ___ wins. (Case is ___)
Converter 1, Anderson more logs
Why does Converter 1 win over converter 2?
don’t encourage successive conversions, increase TO chance with stability
If Finder v. Landowner then ___ win
Finder may
If Finder v. Landowner then it is a ____ argument
fact specific
If Finder v. Landowner then ___ will beat first possession
accession
If Finder v. Landowner generally won’t award to finder if they ___
are a trespasser
Absent other factors first possessor will get property because it is ______ AND there is a ___
easier to prove possession than ownership, innate connection between the two that courts want to protect
When you accidentally and in good faith appropriate someone else’s property and change it into substantially different object then the product belongs to the ___
improver who needs only pay the original owner for the value of the goods converted
If bad faith transformation, regardless of the ___, the improver must __
degree of transformation, return the converted goods back to the OG owner
What is the doctrine of increase
newborn calf belongs to the mother cow
doctrine of increase likely due to ___
paternity proof issue
Ad coelum defines the ____ of accession
scope
Trees that grow on the land belong to __
owner of that land
Perennials belong to ___ but annuals belong to __
owner of the land, possessor of the land (emblements)
Goddard rule
things affixed to land belong to the owner of that land
What is the distribution problem with accession
those that have more get more automatically
Accession over first possession avoids the ___
costly and inefficient race to be first
Accession incentivizes ___
improvement and maintenance of existing assets
Combinations of personal property in roman law prioritized __ but American law emphasizes ____
transformation, value change
R4P says if reversible combination then you must ___
reverse and return object to TO
R4P says if knowing and irreversible combination then the ___ gets it
innocent party
R4P says if unknowing and irreversible the _____ and the other party __
party responsible for greatest share of the value gets the whole thing, is compensated for the value of their physical input (but not their labor)
There is a strong trend against ___ in combinations of personal property
co-ownership
For combinations of personal property, improver generally not recouped for labor unless __
unjust enrichment
What is a fixture
OG moveable chattel but not because of annexation or association in use with the land is regarded as part of the land
Default fixture rule
fixtures belong to the owner of the real property
Teaff factors for fixtures
(1) attached permanently to real property
(2) intent of the value adder (expressed intent only)
(3) custom and expectation of the buyer
____ probably not intending to add value to the property
tenant
When evaluating fixtures, key factor to ___
create strong incentives to make improvements
Strain says that _____ are fixtures
chandeliers and mirrors attached to the plywood on the walls
Strain uses ___ as proxy for ____
physical attachment, closeness of relationship (psych element)
Strain says hat D may not have intended chandelier to be fixture but ___
never shared that intention (objective intent of value adder)
Strain court assumes intent of the Ds was to ___
enrich their property
Why were the Venetian blinds fixtures in Strain?
easily removable but also made to fit for the house
what is accretion
natural deposit by water of solid material producing dry land previously covered by water
Accretion is governed by ___
accession
why is accretion governed by accession
(1) he who gains one year may lose the next
(2) more connected to owner than anyone else
(3) change is de minims
(4) change may be hard to measure
Accretion doctrine recognizes that all land ___
has an owner, no orphan slices
what is avulsion
sudden change on banks of a stream as result of storm, flood etc
what happens to boundary with avulsion
remains the same as before (NOT accession)
why does avulsion not change the boundaries
want to prevent dramatic winners and losers, incentivize owners to make improvements
