PropertyProf Blog

Konomark and the extension of Aloha Jurisprudence

While Alitorros is up in Montreal enjoying Law and Society, I've been sweating out the move to Chapel Hill.  Now I'm in a pet friendly hotel in Chapel Hill, getting caught up on my blog reading....

Via Eric Johnson over at prawfsblawg, I've just learned about "konomark"--a pineapple inside a circle. 

It's a symbol that "that lets visitors to your website know that you are generally willing to share your copyrighted content, such as photos, educational materials, music, etc., with folks like yourself, for free. The konomark is an invitation to e-mail you and ask you for permission."

This is Eric's idea--he blogged about it last April over at prawfs, but I missed it back then.  I think this is great--and a great symbol of friendliness.  As the konomark website says,  "The Hawaiian word 'kono' means to invite, prompt, or ask in. The 'mark' part is pretty self-explanatory – the idea is to mark content that's shareable."  Makes me happy to see that a Hawaiian symbol is used to invite sharing of property--and makes me think that this is a further piece of aloha jurisprudence! (More on aloha jurisprudence here.)  I'm going to start konomarking my papers.  And maybe we'll have a similar sign for access to real property sometime soon--perhaps a palm tree in a circle?!

Alfred Brophy

Is "Intangible" a Property Category?

I think not. I was happy to get a comment on my last post, and the commenter suggested that the category "intangible" will disappear with respect to "virtual" money. I had two thoughts when I read the comment: first, "hmm, isn't all money virtual?" and second, "oh gosh, I need to write another post!"

The question I posed in that last post was "what can virtual property do for property?" and I hope to suggest some answers to that question in this and future posts. One thing that virtual property might do for property is to lure people away from thinking of "intangibles" as a property category. There are many different types of intangible assets, and lumping them together into a single category can impede the development of the law. I explain this point in more detail in my article, "False Categories in Commercial Law: The (Ir)Relevance of (In)Tangibility." Joshua Fairfield took a big step in the right direction when he defined "virtual property" as an asset class in his article, "Virtual Property." In that article, he describes "virtual property" as property that is "persistent, rivalrous and interconnected."

A well-known conversion decision illustrates the problem of viewing tangibility as the defining characteristic of an asset. That decision is the Ninth Circuit's decision in Kremen v. Cohen, 337 F.3d 1024 (2003), the "sex.com case."  In that case, the domain name registrar, Network Solutions, had followed bogus instructions to transfer sex.com (then the most valuable name on the Internet) from its original registrant, Kremen, to Cohen, who had no rights in the name.  Under the applicable California law, an intangible asset can only be converted if it is merged in a document. Therefore, a share of stock evidenced by a paper certificate can be converted, as can a negotiable instrument such as a promissory note. 

Network Solutions had behaved outrageously, and the Ninth Circuit did the right thing in saying that it had converted the domain name. The process by which Judge Kozinski reached that conclusion, however, doesn't do much for the development of property law. To find Network Solutions liable, the court had to find that the name WAS merged in a document. The problem with that approach is that there's no tangible document involved in domain name registration. Registration is completely electronic, and once the name is registered, it goes into the Domain Name System, which is also not only completely electronic, but is also distributed among a number of places. Nevertheless, the court found that sex.com was merged in a document, the domain name system!

Why is the decision in Kremen a problem? Because it focuses on the wrong characteristic of a domain name, its intangibility. By doing so, the court engaged in strange mental gymnastics to find that an electronic, distributed system is a "document" for the purpose of a conversion action. But why is a document so important to conversion anyway? Take a promissory note as an example. A promissory note is a reified right to payment, and that right is commonly transferred by negotiation, which involves physical delivery. If a person takes a note from its rightful owner, that person can exercise control over the payment right, to the exclusion of the rightful owner. In other words, a promissory note is rivalrous.

Likewise, a domain name is rivalrous. When Network Solutions tranferred sex.com to Steven Cohen, Gary Kremen, the rightful owner, could not use it. There can only be one sex.com domain name. The court in Kremen v. Cohen declined to extend the tort of conversion to all intangible assets, which was the right conclusion. But extending it to domain names only because they are "merged in a document" is also wrong. By focusing on intangibility rather then on rivalrousness, the Ninth Circuit missed a great chance to modernize the law to account for emerging electronic rights.

But what do virtual worlds have to do with this? Everything in a virtual world is intangible, but the rights embodied in these intangible assets are as different as the rights embodied in assets in the real, or tangible, world. The two disputes I discussed in my initial post, Bragg and Eros, illustrate this point in a way that a domain name dispute cannot. Bragg, a dispute involving intangible assets, is a conversion case. Linden interfered with Marc Bragg's use and enjoyment of his virtual world assets in the same way that a bicycle thief might interfere with my use and enjoyment of my bicycle. Eros, another dispute involving intangible assets, is an intellectual property case. In that case, Thomas Simon didn't interfere with anyone's use of a sex bed (and no, I will not post about how a sex bed works. Google it); he instead interfered with the right of Eros to make copies of and distribute the sex bed. So virtual worlds, by giving us the opportunity to resolve myraid property disputes, ALL of which involve intangible assets, might help us to clarify our thinking about intangible assets.

Juliet Moringiello

[Comments are held for approval, so there will be some delay in posting]

Sex Beds and Virtual Land: What can Virtual Property Do for Property?

Thanks for the introduction, Ben! Ben's description of me as someone "who also teaches Property" is just right; I started teaching Property after over ten years of teaching upper-level Property-related courses such as Secured Transactions, Bankruptcy, and Electronic Commerce. My years teaching Secured Transactions piqued my interest in intangible assets, which is what brings me to sex beds and virtual land. Sex beds and virtual land were at the center of two controversies involving the property rights of participants in the wildly popular virtual world, Second Life. In later posts, I'll explain how property rights arise in Second Life, but in this post, I would like to introduce the two disputes, Eros v. Simon and Bragg v. Linden Research.

In Eros, several Second Life merchants sued Thomas Simon, who had been making and selling unauthorized copies of the plaintiffs’ products. The plaintiffs are described in the complaint as some of the most successful merchants in Second Life. Kevin Alderman, the principal of the lead plaintiff, Eros, built the first in-world sex bed and sells a host of adult-themed items, and the other plaintiffs sell items such as virtual clothing, virtual furniture and avatar skins. According to the complaint, the items sold by the plaintiffs are protected by trademark and copyright laws. The defendant copied all of these items and started selling them to Second Life residents himself. All of the objects were marked “no copy” or “no transfer.” These markings make copying theoretically impossible, but there are security flaws in Second Life that enable copying of such objects. The plaintiffs sued for, among other things, copyright and trademark infringement.   

The plaintiff in Bragg wanted to develop "real estate" in Second Life. To do so, he joined Second Life and started to acquire virtual land. A member purchases virtual land with the Second Life currency, Lindens. Lindens can be freely traded, and the Second Life web site includes a currency exchange, the Lindex. Today, $1 equals 265 Lindens. So, Mr. Bragg bought Lindens, and then bought land.

There are several ways to buy land in Second Life, one of which is by auction. Bragg bought numerous pieces of land and then discovered an exploit in the system that allowed him to buy land cheaply. His use of the exploit violated the Second Life Terms of Service, so Linden (the operator of Second Life) terminated his accounts, denying him access to his land and Lindens. Bragg sued Linden, alleging that Linden converted his property.

Both of these matters settled, but they provide property scholars with the opportunity to analyze rights in intangible assets in the context of intangible assets that look and act an awful lot like real property and tangible personal property. More on that next week.

Juliet Moringiello

[Comments are held for approval, so there will be some delay in posting]

---

Weiser and Hatfield on Property in Spectrum

Phil Weiser and Dale N. Hatfield (Univ. of Colorado) have posted Spectrum Policy Reform and the Next Frontier of Property Rights on SSRN.  Here's the abstract:

The scarcity of wireless spectrum reflects a costly failure of regulation. In practice, large swaths of spectrum are vastly underused or used for low value activities, but the regulatory system prevents innovative users from gaining access to such spectrum through marketplace transactions. In calling for the propertyzing of swaths of spectrum as a replacement for the current command-and-control system, many scholars have wrongfully assumed the simplicity of how such a regime would work in practice. In short, many scholars suggest that spectrum property rights can easily borrow key principles from trespass law, reasoning that since property rights work well for land, they can work well for spectrum rights as well. But as we explain, spectrum is not the same as land, and a poorly designed property rights regime for spectrum might even be worse than the legacy model of spectrum regulation.

This Article addresses three central questions that confront the design and implementation of property rights in spectrum. First, it suggests how policymakers must develop a set of rights and remedies around spectrum property rights that reflect the fact that radio signals defy boundaries and can propagate in unpredictable ways. In particular, if policymakers simply created rights in spectrum and enforced them like rights in land (i.e., with injunctions for trespass), they would invite strategic behavior: spectrum speculators would buy licenses for the sole purpose of suing other licensees when their transmission systems created interference outside the permissible boundary (i.e., act as spectrum trolls). Second, it rejects the suggestion that policymakers establish a unitary property right for spectrum, arguing that policymakers should zone the spectrum by establishing different levels of protection against interference (i.e., an ability to transmit signals with more latitude) in different frequency bands. Finally, this Article discusses what institutional strategy will best facilitate the development of the property right and its enforcement, concluding that an administrative agency - be it a new one or a reformed FCC - is better positioned than a court to develop and enforce the rules governing the use of spectrum so as to facilitate technological progress and prevent parties with antiquated equipment from objecting to more efficient uses of spectrum.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Moringiello on Estates in Virtual Property

Juliet Moringeillo (Widener University School of Law) has posted Towards a System of Estates in Virtual Property on SSRN.

Virtual worlds such as Second Life have received a lot of press in the United States recently. As individuals and businesses participate in these virtual worlds, questions arise regarding the application of existing laws to their virtual world transactions. Many questions have arisen regarding the property rights of participants in virtual worlds, and a Second Life member recently sued Linden Research, the company that developed Second Life, alleging that Second Life converted his virtual property. The questions regarding the legal nature of virtual world assets tend to mirror the questions regarding intangible rights generally, as courts have tended to struggle over whether these rights are property rights or contract rights. In this paper, I propose that the principle of numerus clausus be applied to virtual property, so that courts faced with disputes over such assets will have mandatory property forms to which to resort. Such an approach would limit the ability of vendors of such rights to customize them through their contracts, which are commonly embodied in electronically-presented standard forms.

Ben Barros

[Comments are held for approval, so there will be some delays in posting]

Van Houweling on The New Servitudes

Molly Shaffer van Houweling (UC Berkeley - Boalt) has posted The New Servitudes on SSRN. Here's the abstract:

In the age of electronic commerce, consumers routinely acquire intangible products without engaging in any direct human interaction. These products—computer programs, digital music, etc.—often arrive bearing terms that purport to limit the sticks in the consumers' bundles of rights in ways that depart from the background limitations imposed by intellectual property law. For example, a consumer who has downloaded a computer program from the Internet might be presented with a screen of text imposing myriad restrictions on how the program may be used; installation commences only when the consumer clicks “I agree.” Courts in the United States have increasingly enforced such restrictions—labeling them “click-wrap licenses” and applying to them the same contractual concepts that govern face-to-face exchanges of promises. Similar licensing approaches—albeit with quite different substantive terms—have been extended into the realms of “free software” and “free culture.”

The law of tangible property offers a different lens through which to view these contemporary techniques for distributing and controlling intangible products. When someone buys land that is purportedly subject to use restrictions imposed by a prior owner, those restrictions are sometimes enforced as “servitudes”—non-possessory property interests that attach to land and impose their restrictions and obligations on generation after generation of landowners. Like click-wrap licenses and similar techniques of the digital age, use restrictions imposed by servitudes bind remote purchasers with whom the beneficiaries of the restrictions may have no direct relationship. They do not arise from any human communication, but instead “run with” the burdened assets and automatically bind current possessors.

Although servitudes are a familiar feature of contemporary real property law, they have long encountered judicial skepticism that has generated a host of doctrinal complications. This skepticism has been even more pronounced in the context of servitudes applied to items of tangible personal property. But it finds little expression in the current contractual approach to interpreting licenses attached to intangible products.

In this article I develop a comprehensive account of the evolving jurisprudence of servitudes as applied to both land and personal property, identifying the sources of traditional servitude skepticism in order better to evaluate the new generation of running restrictions on intangible informational goods. I apply the lessons I draw from the old servitudes to paradigmatic examples of contemporary licensing practices—including Microsoft end-user license agreements, the Free Software Foundation's General Public License, and Creative Commons licenses. The lessons I draw from the old servitudes bring the problems—and also the promise—of these new servitudes into sharp focus, providing a new framework within which to analyze emerging electronic commerce practices while contributing doctrinally- and historically-grounded insights into the ongoing debate about the proper relationship between intellectual property and the public domain.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Marilyn Monroe's Legacy

For a woman who died 45 years ago, Marilyn Monroe has been in the news a lot lately.  On the one hand, a dispute is raging in California and New York over who has the rights to images of Marilyn, reported in this story (hat tip:  Wills, Trusts, and Estates Prof Blog).  The California legislature recently passed a bill that would make a celebrity's right of publicity bequeathable by will even if the celebrity died before rights of publicity were recognized by the courts in California.  The bill awaits the signature of California's governor, Arnold Schwarzenegger, who has personal experience with rights of publicity.  On the other hand, the BBC reported last week that several "lost" dresses worn by Marilyn are being exhibited in the U.K., including the famous dress Monroe wore in the publicity shot for The Seven Year Itch while standing over a New York subway grating.  So, if the California bill is signed, those who don't want to pay for the photo rights can go to Britain to see the dress instead.

Whether the right of publicity should be bequeathable is an interesting question.  On the one hand, if the reason for recognizing the right of publicity is that a celebrity's persona is an extension of her personhood, then it isn't obvious that such a right should continue to be protected after her death.  But if the right of publicity is meant to encourage people to work hard and become famous, so that they can reap the benefits of the persona they develop, then that same incentive argument might justify a power of testation over the right of publicity.  There is also an interesting constitutional issue here.  The Supreme Court held in Hodel v. Irving that a complete abrogation of the power of testation may be an unconstitutional taking.  Given that California and several other states recognize a common-law right of publicity, in addition to a statutory right, can the state take away the power to bequeath this publicity right by will without compensating the holder of the right?

The museum exhibition of Monroe's dresses raises another question.  In her will, Monroe bequeathed her "personal effects and clothing" to her acting coach, Lee Strasberg, "it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted."  In fact, however, as explained in a recent article by Alyssa DiRusso, He Says, She Asks:  Gender, Language, and the Law of Precatory Words in Wills, Strasberg never distributed any of Monroe's personal effects to anyone; in fact, he requested that some of her possessions be returned by a colleague to whom she had given them.

There is no indication that any of the dresses on exhibit in the U.K. were part of the bequest to Strasberg.  But suppose that they were.  Should Strasberg have a legal obligation to distribute them to her friends and colleagues?  DiRusso argues that women tend to use precatory language (deemed nonbinding) in wills where men would issue a binding command.  Here is the abstract of her article:

Precatory language is often insufficient to create a legally binding trust. Men and women choose different language to express themselves. What is the connection between these two statements?

This article reviews the current status of the law of precatory language, concluding that whether a will including precatory words (such as wish, ask, or recommend) will be construed to create a trust is at best a hit or miss proposition. The article continues to explore the psychology literature on differences in language ability and expression between men and women. Finally, the article ties these two disciplines together, analyzing original empirical data collected from 324 subjects and concluding that women are indeed more likely to use precatory language than men. The article concludes by noting the impact our heightened understanding of gender and precatory language has for courts, legal scholars, and practicing attorneys.

Should the court construe Monroe's words differently because she is female?  This is not an easy question, particularly when the will was drafted by an attorney rather than by the testator herself.  But DiRusso is right to call attention to the law's apparent blindness to gender differences in language.

It will be interesting to see whether Schwarzenegger signs the California bill.  If he does, Anna Strasberg, the third wife and heir of Lee Strasberg, will have a hugely profitable income stream from Marilyn's right of publicity, in addition to whatever benefit she received from the clothing and personal effects her husband decided to keep.  It is not clear that Marilyn knew Anna, let alone that Anna was one of her closest friends.  It seems a bit bizarre for Anna to profit from Marilyn's talent given her tenuous connection to Marilyn.  But perhaps that is a necessary consequence of respecting Marilyn's testamentary freedom.

Josh Tate

[Comments are held for approval, so there will be some delay in posting]

Boonk and Lodder on Website Access

Martine Boonk (Vrije Universiteit Brussel) and Arno R. Lodder (Free University of Amsterdam) have posted Regulating Website Access for Automated Means Such as Search Bots and Agents: Property or Contract? on SSRN.  Here's the abstract:

This paper deals with legal issues concerning website access for software agents, notably the question how terms and conditions on a website can be presented in such a way that software agents and other automated programs exploring the internet can adhere to them. We discuss the technology behind requesting website content, and indicate for what reasons website owners regulate access to their web sites.

The core of the paper analyses the legal grounds for applying terms and conditions to websites: property rights and contractual duties. In our discussion we take into account the theory of browse-wrap licenses and case law from both Common Law and Civil Law countries. We also argue that under specific circumstances, the mere visiting of a website may constitute a contract.

The question as to whether what holds for human users also holds for automated means is given special attention. Finally, we introduce ways to more effectively regulate website access for automated means.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Driesen on Infrastructure Commons

David M. Driesen (Syracuse) has posted An Economic Dynamic Approach to the Infrastructure Commons on SSRN.  Here's the abstract:

This brief essay comments upon and extends Brett Frischman's idea of the infrastructure commons, i.e. that certain commons resources function as infrastructure. After suggesting some refinements of the infrastructure commons theory, this essay shows how an economic dynamic approach to law (see David M. Driesen, The Economic Dynamics of Environmental Law (MIT Press 2003) can help strengthen the case for proper management of the infrastructure commons, helping bolster the case for preserving the commons and identifying some of its limitations. The essay, like Professor Frischman's original article, applies infrastructure commons theory to both environmental and intellectual property resources.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Smith on IP as Property

Henry E. Smith (Yale Law School) has posted Intellectual Property as Property: Delineating Entitlements in Information on SSRN.  Here's the abstract:

This Article proposes that intellectual property's close relationship to property stems from the role that information costs play in the delineation and enforcement of exclusion rights. As theorists have emphasized, the nonrivalness of information causes exclusive rights to be more costly in terms of forgone use than in the law of tangible property. But if intellectual property does not solve a problem of allocation to information, it can play a role in allowing those who find and develop information to appropriate the return from their rival inputs. It is on the cost side that exclusion emerges as a possible shortcut: exclusive rights in information are simple, indirect, and low-cost devices for solving the problem of appropriating the return from these rival inputs. Building on a framework that identifies exclusion and governance as complementary strategies for defining property rights, the Article derives some propositions about which factors can be expected to push toward and away from exclusion in delineating entitlements to information. The role that exclusion plays in keeping the system of entitlements over information modular - allowing information to be hidden behind metaphorical boundaries - is both its strength and its weakness. Because exclusion is both more costly and potentially more beneficial as interconnected information becomes more valuable, it is an empirical question whether we would expect more exclusion - and whether it would be desirable. The Article uses this information-cost theory to explain some of the basic differences between the more tort-like copyright regime and the more property-like patent law. The information-cost theory also has implications for suggestive sources of empirical evidence on structures of entitlements, such as rules within business organizations. Intellectual property, like property in general, can be seen as (at best) a second-best solution of a complex coordination problem of attributing outputs to inputs.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Menell on IP and the Property Rights Movement

Peter S. Menell (Boalt) has posted Intellectual Property and the Property Rights Movement on SSRN.  Here's the abstract:

The article examines the recent efforts of the Property Rights Movement to expand the “property tent” to emcompass intellectual property. In eBay v. MercExchange, a case addressing the standard for injunctive relief in patent cases, some property rights advocates argued that the Supreme Court should look to trespass and encroachment cases to establish a strong presumption favoring a right to a permanent injunction. More generally, Professor Richard Epstein has suggested that “structural unity” between real and intellectual property should guide courts and legislatures to use the real property mold in evolving intellectual property law. This article shows that the origins, philosophical foundations, and economic ramifications of real and intellectual property are quite distinct and that uncritically basing intellectual property law on a real property analogy is likely to cause more harm than good. The article also suggests that property rights advocates' effort to expand the “property tent” to include intellectual property is likely to backfire, calling attention to the interdependency of resources and the need for a significant government role in governing allocation and use of property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

NY Times on Virtual Gold Farming

Those of you interested in virtual property and the economies of MMOGs should check out an article from yesterday's NY Times Magazine on Chinese gold farms -- companies that accumulate virtual property and sell it for real-world money.  The article also mentions a class-action lawsuit filed by players of one MMOG against retailers of virtual property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Moringiello on Tangibility

My colleague Juliet Moringiello (Widener) has posted False Categories in Commercial Law: The (Ir)Relevance of (In)Tangibility on SSRN.  Here's the abstract:

Almost fifty years ago, Grant Gilmore, the co-reporter for Article 9 of the Uniform Commercial Code, recognized the difficulties that intangible assets pose for commercial law, noting that “if you can see it, count, weigh and measure it, it exists; if you can't, it doesn't.” The original drafters of Article 9 were concerned primarily about facilitating secured transactions in intangible payment rights. Today, the difficulties that Gilmore identified are multiplied by the proliferation of electronic assets, such as Internet domain names and assets in virtual worlds such as Second Life.

Although Article 9 of the UCC was revised fairly recently, one area in which it does not adequately cover electronic assets is in its enforcement provisions. The enforcement provisions in Article 9 are based on a false distinction, a distinction based on the tangibility or intangibility of the asset in question. While courts can modernize commercial law through their decisions, courts faced with emerging electronic assets tend to cling to the same false distinction, viewing tangible property as the property paradigm and viewing many intangible assets as either new forms of “intellectual property,” or worse, as “not property” at all.

This paper explores the problems caused by commercial law's fealty, in the creditors' remedies area, to the notion of tangibility, and suggests that courts and other lawmaking bodies look to general property principles in fashioning rules to govern electronic assets. The article analyzes recent judicial decisions and legislative enactments dealing with electronic assets and identifies some common mistakes that lawmaking institutions make in dealing with these new types of assets. The article concludes by analyzing some older decisions in which courts were forced to refine the concept of possession to account for new types of assets and suggests that courts dealing with electronic assets look to these, and not necessarily to other cases dealing with intangibles, in fashioning rules to govern electronic assets.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Bartow on Naming Rights

Ann Bartow (University of South Carolina) has posted Trademarks of Privilege: Naming Rights and the Physical Public Domain on SSRN.  Here's the abstract:

This paper critiques the branding and labeling of the physical public domain with the names of corporations, commercial products, and individuals. It suggests that under-recognized public policy conflicts exist between the naming policies and practices of political subdivisions, trademark law, and right of publicity doctrines. It further argues that naming acts are often undemocratic and unfair, illegitimately appropriate public assets for private use, and constitute a limited form of compelled speech. It concludes by considering alternative mechanisms by which the names of public facilities could be chosen.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Property Students in Second Life

At Terra Nova, Rachel Goda has an interesting post on sending first year property students into Second Life to see how property concepts are reflected in the virtual world.  Hat tip:  David Post at the VC.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Isaacs on Takings and Patents

Davida H. Isaacs (Northern Kentucky University) has posted Not All Property is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They are Right to Do So on SSRN.  Here's the abstract:

After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment's Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders' regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as "property". Meanwhile, last year's rejection by the Federal Circuit of a patentholder's right to assert a Takings Clause claim led to both external criticism as well as a vocal dissent by an esteemed member of that court.

Considering the issue from a new angle, this article demonstrates that determination of patents' status as "property" is a relevant but incomplete analysis of the constitutional question. That is because the Supreme Court has already concluded that some "property interests," particularly federal benefits, are entitled to Due Process Clause protection but are not entitled to Takings Clause protection. Patents are similar federal entitlements, offered only because they serve society, and thus they are not entitled to the full panoply of constitutional protections. Moreover, if patentholders could assert regulatory takings claims, the fear of costly claims could very well deter the government from making worthwhile policy changes. For instance, there is currently significant public concern about the high prices of pharmaceuticals resulting from drug companies' patent privileges. Refusing to grant patentholders the right to a Takings Clause remedy will prevent society from being stuck with earlier suboptimal patent policies. In sum, permitting patents to trigger takings claims is neither compelled by modern Supreme Court precedent nor wise as a policy matter.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Menell on Property Rights Movement and IP

Peter S. Menell (Boalt Hall) has posted The Property Rights Movement's Embrace of Intellectual Property: True Love Or Doomed Relationship? on SSRN.  Here's the abstract:

The recent Supreme Court battle over the legal standard for permanent injunctions in patents cases (eBay v. MercExchange) marked an important new front in the Property Rights Movement's campaign to establish a strict and broad interpretation of property rights and their enforcement. This essay explores whether Professor Richard Epstein's embrace of intellectual property rights is likely to produce a durable marriage of traditional property rights theory and intellectual property protection or merely represents a fling that will not withstand divisive relational pressures. It shows that philosophical, functional, intellectual, and political tensions stand in the way of a stable or enduring relationship between advocates of strong and unyielding property rights and intellectual property owners. The need for dynamism and adaptability within the intellectual property rights field may well weaken the support for absolutism in property jurisprudence and policy, reinforcing the shift away from the Blackstonian conception of property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Safrin on How Property Begets Property

Sabrina Safrin (Rutgers - Newark) has posted Chain Reaction: How Property Begets Property on SSRN.  Here's the abstract:

Classic theories for the evolution of property rights consider the emergence of private property to be a progressive development reflecting a society's movement to a more efficient property regime. This article argues that instead of this progressive dynamic, a more subtle and damaging chain reaction dynamic can come into play that traditional theories for intellectual and other property rights neither anticipate nor explain. The article suggests that the expansion of intellectual and other property rights have an internally generative dynamic. Drawing upon contemporary case studies, the article argues that property rights evolve in reaction to each other. The creation of property rights for some engenders the demand for related property rights by others. These demands and resulting recognition of property rights may have little to do with the value of the resource in question or efficiency concerns. Today's global economy makes the collateral creation of property rights more pronounced because changes in property rights in one country can trigger unanticipated changes in the property regimes of another.

The article offers three explanations for why property rights beget more property rights. The first draws on group behavior theory; the second focuses on a breach of a cooperative norm; the third flows from the right of exclusion. The chain reaction evolution of property rights helps explain why intellectual property rights have vastly expanded over the last several decades and continue to expand. It also sheds light on the increased transformation of spaces and tangible goods from open access or commons property to exclusive ownership regimes. The chain reaction theory of the evolution of intellectual and other property rights has considerable implications. It anticipates the development of unexpected, extensive and ultimately undesirable property regimes.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Kieff and Paredes on the IP Anticommons

F. Scott Kieff and Troy A. Paredes (both of Washington University School of Law) have posted Engineering a Deal: Toward a Private Ordering Solution to the Anticommons Problem on SSRN.  Here's the abstract:

The problems of the intellectual property (“IP”) anticommons are infamous. Many people fear that the potential for vast numbers of IP rights to cover a single good or service will prevent an enterprise from even attempting to launch a business for fear of being unduly taxed or retarded or simply held up. This Article offers a solution based on private ordering within the context of existing laws. This approach uses a limited liability entity structured so that IP owners are given an actual stake in the operating business and thus an incentive to participate in the enterprise; and yet at the same time, the IP owners face a number of constraints that mitigate their interest in acting opportunistically by holding out. Through careful attention to IP owner payoffs and self-restraint, the proposed structure is designed to coordinate behavior among relevant IP owners, thus overcoming the anticommons problem. This approach is designed to help lawyers serve their role as transaction cost engineers who can structure relationships in ways that get deals done.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Why YouTube Might Not Have Infringement Problems

Tim Wu (Columbia Law School) has a great post on Slate explaining why YouTube isn't likely to go the way of Napster.  This issue came up during my short tour through IP law in my Property class; if you cover this stuff, it might be worth directing your students to Wu's post.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Seizing O.J.'s Right To Publicity

I've been meaning to post on this since I heard about it a few days ago, but Eugene Volokh saved me the trouble with an interesting post on Fred Goldman's attempt to seize O.J.'s right of publicity.  The case will turn in part on whether the right to publicity is viewed as property or as something kind-of-like-property-but-not-quite-property.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Art and Property

Today's New York Times carries a review of a new exhibit of Walker Evans photographs, Walker Evans. Or is It?, that raises some interesting questions about the nature of intellectual property.  (The reviewer's focus is on the questions raised about the nature of photography; I merely extend the inquiry a bit here.)  Some of Walker's prints from the 1930s that are in the public domain were digitally scanned and printed in an enlarged format, now on display until November 17 at the UBS Art Gallery on Sixth Ave. in New York.  The result, as the reviewer tells us, are images that are "seductive and luxurious -- velvety, full of rich detail, poster-size in a few cases and generally cinematic." Because they are unlike the smaller-format silver gelatin prints that Evans made "the pictures are read differently, more piecemeal, in a way that film in a theater is viewed differently from an image on television or on a computer screen."  From an artistic standpoint, the reviewer wonders whether photography is closer to music and theater, where each performance is an interpretation of an original score or text, or painting, where there is but one object, and copies are fraudulent.  From a property perspective, what is the property that inheres in a photographic image?  The economic rights are fairly obvious.  I'm more interested in what the civil law terms the moral rights of artists. Of course, the artist can control this by retaining the copyright, and because these Evans prints are in the public domain there is no issue of whether Evans's economic property rights have been violated.  That raises the Visual Artists Rights Act of 1990, which brings into federal law a portion of the civil law notion of moral rights of artists, and provides at 17 U.S. C. 106A (a)(3)(A) that a visual artist has the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation . . . ."  From viewing the photos on display in today's Times, in my humble view, the digitial prints surely don't violate this statute.  But what of the larger, more philosophical, point?  What does a photographer own?  Is a photographic image more like a painting or a musical score? 

Calvin Massey

Comments are held for approval, so there may be a delay in posting

      

Takings and Patents

Over at Patently-O, Dennis Crouch has an interesting post on a Fed Circuit case holding that a patent is not a property right protected by the Takings Clause.  My own (admittedly somewhat uninformed) comments on the related issue of state takings of IP are here and here.

Ben Barros

[Comments are held for approval; there will be some delay in posting]

Federalist Society Intellectual Property Conference

The Federalist Society is organizing a conference on Intellectual Property:  Back to Basics in Washington D.C. on May 17:

10:00 a.m. - 11:45 a.m.
Panel One: By Any Other Name: Intellectual Property as "Property"

Is intellectual property really "property?" The property label has become controversial in modern scholarship and policy debates. Some contend that copyright and patent law should be about innovation policy, not property rights. They view patents and copyrights as a necessary evil provided to encourage progress in the arts and sciences. In this view, there is no inherent justification for the rights of intellectual property owners; they are wholly contingent on the social good they produce. Others view the concept of property far more expansively, and they see intellectual property as a key component of individual liberty, justified by ownership of one's own person and labor. These opposing views lead to very different understandings of intellectual property.

This panel will focus on the philosophical and practical implications of intellectual property as property. Is intellectual property best treated as cultural and innovation policy or as a private property right? Are intellectual property rights morally justified by the owner's right to life and liberty? Does intellectual property only impose on other liberties, or does it in fact support and defend them? How can property doctrines and policies strike a balance between owners' rights and the public interest? This panel will present several differing perspectives on these questions, examining how they apply to patents, copyrights, trademarks, and other forms of intellectual property.

12:00 noon - 1:45 p.m.
Panel Two: Modern Intellectual Property Rights: Unprecedented Growth or Unprecedented Erosion?

Are intellectual property rights stronger than ever or are they under unprecedented attack? Conventional wisdom is of two minds. Intellectual property owners contend that intellectual property rights are threatened like never before. On the other hand, critics believe that intellectual property rights have grown to an unprecedented and unhealthy degree. Most agree that intellectual property rights should encompass a balance between private rights and the public interest, but there are starkly different views as to whether the balance is tipping the right way. For example, some object to the use of antitrust law to overcome intellectual property rights held by large corporations, while others say it has not gone far enough. Many assert that governments should use compulsory licensing of patents and other intellectual property rights to correct perceived market failures. Some open source and free software advocates contend that governments should favor open source software over market-based models of software development. How should policymakers balance intellectual property rights with market considerations? With the public good? Are we striking the right balance or are we failing?

Confirmed Participants to Date Include:

Prof. Wendy Gordon, Boston University School of Law
Prof. F. Scott Keiff, Associate Professor, Washington University School of Law and National Fellow, Hoover Institution, Stanford University
Prof. Adam Mossoff, Michigan State University School of Law
Prof. Mark Schultz, Southern Illinois University School of Law
Ms. Gigi B. Sohn, President and Co-Founder, Public Knowledge

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Who Owns (and will profit from) Native Culture?

I'll be participating in a conference at the University of North Carolina on Thursday (and traveling much of the weekend), so I'm going to be pretty quiet until next week.  Plus, it looks like everyone's going to consumed for the next few days thinking about the new US News rankings.

Because the conference is on reparations, I thought I'd leave off with a post on a related topic:
One question that people are increasingly asking these days is: how can native people receive compensation for the products of their culture?  In the words of Williams College Professor Michael Brown's important 2003 book, Who Owns Native Culture?  These questions come up in all sorts of places: Keith Aoki's written a lot about native rights to property--like seeds.  Madhavi Sunder has the latest contribution to theorizing why traditional communities deserve compensation for preserving traditional knowledge here.  And in Hawaii this is increasingly a topic of much concern because of local products, like the sacred taro plant, are being genetically engineered and appropriated for use by non-Hawaiians.  And the preservation of sacred places is a topic that we're hearing a lot about in Hawaii.  As we discussed earlier this week, there is also increasing talk of preservation of access to cemeteries on the mainland.

I thought again about this problem recently when I visited the Honolulu Academy of the Arts.  They have a fabulous--and I do mean fabulous--exhibit of treasures taken by Captain Cook's crew back to Great Britain. It's called Life in the Pacific of the 1700s: The Cook/Forster Collection of the Georg August University of Göttingen.  The treasures found their way into Germany–-and so they’re now on loan from several German museums. The exhibit is absolutely fascinating; I highly recommend it.  There are clothes, including a stunning mourning dress and simple but beautiful and elegant garb.  There are also fish hooks of all sizes, mats, an extensive fish net, and weapons.  Notable by their absence are religious objects.

One of the many things that struck me was how beautiful the clothes are.  Let's face it: they're destined for Seventh Avenue in New York City.  Check out the Honolulu Academy of Arts website to see a picture a heva, a Tahitian full-length mourning dress with headdress.  The picture, which is stunning, just doesn't do it justice.  Most of the other clothes in the exhibit are quite simple; often made out of organic materials (like coconuts).   And I think they'll be a huge hit in the marketplace.  Now, we just need to figure out a way to insure that the descendants of the people who created this work receive some compensation....  One way for that to happen is for clothes designers in Hawaii and elsewhere in the Pacific to get busy.

Special thanks to my colleague Carl Christensen, who told me some things about the exhibit that I didn't know.

Alfred L. Brophy

Comments are held for approval, so they will not appear immediately.

McKenna on Normative Foundations of Trademark

Mark P. McKenna (St. Louis University Law School) has posted The Normative Foundations of Trademark Law on SSRN.  Here's the abstract:

This paper challenges the conventional wisdom that trademark law traditionally sought to protect consumers and enhance marketplace efficiency. Contrary to widespread understanding, early trademark cases were decidedly producer-centered. Trademark claims, like all unfair competition claims, sought to protect a producer from illegitimate attempts to divert its trade, and consumer deception was relevant in these cases only to the extent it was the method by which trade was diverted.

Moreover, American courts from the very beginning protected a party against improperly diverted trade by recognizing property rights derived from a natural rights theory of property. That traditional approach dictated very specific and workable restrictions on the scope of trademark protection. In fact, despite repeated claims that modern trademark law is illegitimate because it has lost its consumer focus, the expansion of trademark law in the twentieth century was more a consequence of the rise of consumer protection rhetoric than a rejection of that view.

This paper argues that the broad protection trademark law now provides deserves sustained scrutiny, but that criticisms can be leveled against modern doctrines must stand on their own merits and fairly confront the policy goals of modern trademark law. The criticisms cannot draw their normative force by pointing to "traditional" principles that did not exist.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]

Balganesh on Cybertrespass

Shyamkrishna Balganesh (Yale Law School) has posted Common Law Property Metaphors on the Internet: The Real Problem with the Doctrine of Cybertrespass on SSRN.  Here's the abstract:

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to examine the implications of transposing property metaphors to the world of the Internet, characterized by the absence of resource rivalry and the reality of positive value enhancement through increased usage (i.e., a network effect, whereby participation in use by many is a condition for value in use by any). It is argued that the transposition of proprietary concepts to the Internet is done for purely instrumental reasons - reasons that derive neither from the nature of the resource nor its usage. The paper then evaluates whether such an instrumental use of proprietary concepts on the Internet has any effect on the meaning ordinarily attributed to the concept of property and the identification of property as an independent institution of moral significance. It concludes by showing that the relative neglect that doctrines such as cybertrespass have for identifying the boundaries of the res over which the property right is to operate, is capable of undermining the minimum core of any understanding of property as an independent institution.

Ben Barros

[Comments are held for approval, so there will be some delay in posting]