Unauthorized Improvement Across Property Law

Deepa Varadarajan, Improvement Doctrines, 41 Geo. Mason L. Rev. (forthcoming 2014), available at SSRN.

Scholars often debate whether intellectual property really is property at all. This is far more than just a descriptive inquiry. Asking how law regulates tangible and intangible goods differently can deliver valuable insights about the optimal governance of real property and chattels, patents and copyrights. Deepa Varadarajan’s engaging piece, Improvement Doctrines, forthcoming in the George Mason Law Review, represents an important contribution to the growing literature about what property and IP can help us learn about one another. Improvement Doctrines focuses on the fascinating but underappreciated body of doctrines in physical property law that favor—and sometimes entirely excuse—trespass and conversion that is done in good faith and that adds significant value to the res. Professor Varadarajan’s article then uses these improvement doctrines as a lens though which to analyze intellectual property’s relatively anemic attempts to take account of improving but unauthorized uses of patented inventions and copyrighted works of authorship. In so doing, Improvement Doctrines identifies and illuminates a series of fascinating problems that span both physical and intellectual property law.

Professor Varadarajan’s article begins with physical property’s improvement doctrines and moves into an investigation of unauthorized improvement in intellectual property law. In so doing, though, it neither assumes that tangible and intangible property law must mechanically mirror each other, nor insists that the differences between corporeal and incorporeal goods render any such extrapolations useless. Rather, Improvement Doctrines’ primary analytical driver is its thoughtful synthesis of the efficiency and equity rationales underlying ameliorative waste, accession, adverse possession, and mistaken improvement of land. This discussion alone yields a number of valuable insights, such as the creative point that adverse possession warrants categorization as an improvement doctrine even though its substantive law does not require enhancements to land. Continue reading "Unauthorized Improvement Across Property Law"

What Can Roller Derby Girls Teach Us About IP Law? (Answer: More Than You Think)

David Fagundes, Talk Derby to Me: Emergent Intellectual Property Norms Governing Roller Derby Pseudonyms (forthcoming Tex. L. Rev.), available at SSRN.

The orthodox justification for patent and copyright laws, at least in the United States, is utilitarian: that is, both sets of legal rules are premised on the theory that only by rewarding creators with special property rights can we ensure that creations get created.

Viewed in the abstract, who could argue otherwise?  Both technological innovations and artistic works are often difficult to create but easy to copy. Absent strong property rights, copyists will free ride on the efforts of creators. This, in turn, discourages investment in new inventions and creations. In short, copying stifles innovation – and therefore innovation requires legal intervention in the form of property rights.  Right? Continue reading "What Can Roller Derby Girls Teach Us About IP Law? (Answer: More Than You Think)"

The Public Domain Through Property’s Lens

David Fagundes, Property Rhetoric and the Public Domain, 94 Minn. L. Rev. 652 (2010).

Are patents and copyrights “property,” and does it matter?  While the question is not new in the field, David Fagundes provides a fresh perspective, arguing persuasively that the question should be understood as rhetorical rather than ontological, and that, yes, it does matter.  In Property Rhetoric and the Public Domain, Professor Fagundes aims to build upon the work of scholars working in a tradition he labels the “social discourse of property” to reorient the use of property rhetoric with respect to “intellectual property” away from a solely private rights understanding of property.  By doing so, he argues, advocates for a positive conception of the public domain will be better equipped to blunt the force of property rhetoric deployed to expand the subject matter, scope or duration of copyrights and patents.

This article follows a prior piece, Crystals in the Public Domain, 50 B. C. L. Rev. 139 (2009), in which he argues that ex ante uncertainty about user rights in copyright is a significant problem that could best be addressed by clearer boundaries between private and public rights in copyright law.  While that argument addresses the functional advantages of clearer public rights to use another’s copyrighted expression, this piece argues that there are significant rhetorical advantages to a more clearly defined public domain in copyright law.  In his words, “[b]y framing their concern about the public domain as a concern about preserving public property (rather than simply resisting property), actors concerned about this issue can restore balance to this debate.” (P. 701.) Continue reading "The Public Domain Through Property’s Lens"