Copyright’s Family Law

Of the many things that may cause us to admire an article, one is the author’s identification of a meaningful relationship between fields that had otherwise seemed entirely disparate. In the past year, two pieces—Tony Reese’s Be Careful Where You Die and Brad Greenberg’s DOMA’s Ghost and Copyright Reversionary Interests—identified just such a non-obvious nexus between a popular issue of great social importance (marriage equality) and a relatively obscure topic of great statutory technicality (termination of copyright transfers).

Both of these articles explore issues raised by two of copyright’s distinctive future interest provisions. Descendants of authors whose copyrights vested prior to 1978 are statutorily entitled, under certain conditions, to reversionary interests in those copyrights. And heirs of any authors stand to inherit the inalienable right to terminate transfers established by the Copyright Act of 1976. The trick, in each case, is that the heirs who enjoy these potential future interests—typically, the surviving spouse and children—are determined by statute, regardless of an author’s estate plan or preferences to the contrary. Continue reading "Copyright’s Family Law"

An Information-Cost Critique of Chattel Property Servitudes

Mulligan, Christina, The Cost of Personal Property Servitudes: Lessons for the Internet of Things (July 14, 2014). Available at SSRN.

Property scholars have long noted a peculiar inconsistency between real and chattel property. While law increasingly tolerates different forms of ownership in and servitudes limiting the use of land, it has remained steadfastly resistant to such restrictions in the context of personal property. In her sharp new paper, “The Cost of Personal Property Servitudes: Lessons for the Internet of Things,” Christina Mulligan shows that this long-lamented inconsistency isn’t a problem at all, but rather a sensible distinction that flows naturally from the core differences between real and chattel property. This insight not only helps explain a longstanding puzzle in property law, but sheds new light on the increasing practice of content owners using license agreements to restrict the use of digital goods.

From a purely formal perspective, one might reasonably wonder why courts allow increasing complexity in real property ownership—from historical forms like contingent remainders and fees simple subject to executory limitation to modern innovations like condominiums and time-shares—while insisting that no such variation is permitted with respect to chattels. If I can have a defeasible fee interest or a time-share in a vacation home in Boca Raton, why not also in a Rolex or a refrigerator? This seeming has engaged scholars since Coke. Most recently, Molly Van Houweling investigated contract-based restrictions on personal property from the perspective of physical property, suggesting that the same concerns that warrant skepticism about servitudes on real property may be used to govern servitudes in the context of personal property as well. Continue reading "An Information-Cost Critique of Chattel Property Servitudes"

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"

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