LEGL 2700 - Unit 3 Epstein

Role of Scarcity (property)

need for resources overtakes supply of those resources

State controlled/communism

govt controls resources and directs how they're divided between citizens; control means of production

Property-based/capitals

enact laws that enable citizens to acquire, possess, use, and transfer resources; free market

States generally have a mix

not purely one or the other

Real Property

land, interests in land, buildings (surface, air, surface, subsurface, fixtures)

Personal Property

moveable resources (tangible and intangible)
intangible examples: Securities, stocks, ownership interests in businesses

acquiring property (steps)

1. exchange
2. possession
3. confusion
4. accession
5. gift

1. exchange

Most Common - buying things, providing services in return for a thing - contracts

2. possession

a. unowned
b. lost
c. mislaid
d. neglected

a. unowned

includes abandoned; rule of first possession; something brand new that hasn't been discovered

b. lost

own it except OG owner can come back for it

c. mislaid

owner of premises and OG owner can come back for it; intent to relinquish ownership of it = abandoned/un-owned

d. neglected

adverse possession: acquiring a property interest by use of somebody else's property over an extended period of time; wanting to maximize land; without consent of owner

3. confusion

Fungible (replaceable) goods mixed together

4. accession

a. Adding something new to/repairing something you acquired
i. If stolen, then original owner gets modified property
ii. If accidentally acquired, then acquirer gets it but must compensate original owner

5. gift

a. Remember what we learned about the promise of a gift, but intent AND transfer means you can't take it back

Escheatment

turn over abandoned property to the state

Private property aids in capital formation; pre-req for a thriving economy

Put up house on market to get a loan to start a business

Types of real property Ownership

fee simple, life estate, leasehold estate, concurrent ownership

fee simple

the biggest and best, right to acquire/possess/use/transfer; "to Michelle forever"; can transfer to successor

life estate

PRESENT INTEREST: Michelle cannot then give the property to someone else (not same as fee simple); "To Michelle for life…"; does NOT go to successor
FUTURE INTEREST: remainder interest; "…then to Jim"; it can also revert back to OG owner

Leasehold Estate

a lease; "to Michelle, as a tenant for 12 months"; can't sell it

Concurrent Ownership

-Tenancy in common: normally followed by percentages of each person's share; "to Jason and Julie"
-Joint Tenancy: "To Jason and Julie as joint tenants with right of survivorship"; one person dies, other gets the entire thing

easement

right to use land of another in a certain way

Easement by Prescription

similar to adverse possession, but you're not owning it, you're getting right to use it; out in open, using it over time

natural easement

one of necessity (ex. Only one way to get to road, have to cross someone's land)

bailment

arises when you entrust someone with your property to be returned in the future; temporary ownership of personal property; can extend for indefinite period of time

Types of Bailments

-Mutual benefit: reasonable standard of care that bailee must show (ex. exchanging money)
-Benefit of bailor: slight duty of care; less than reasonable standard (ex. Bailor putting car in bailee's garage)
-Benefit of bailee: very high duty of care; higher than reasonable standard (ex. borrowing Bailor's car)

intellectual property

Creations of the mind (inventions, literary works) that are protected under the law; provides incentive to innovate; Large impact at the micro and macro levels
o Micro: Individual firms
o Macro: larger entities

types of IP

· Trademark - protects company and consumers
· Copyright
· Patent
· Trade Secret (coke formula)

trade secrets

· Use it for things with economic value
· Requirement: keep it secret (reasonable measures taken)

Establishing the Existence of a Trade Secret

1. conduct a trade secret audit to identify confidential knowledge-based resources
2. preserve secrecy

1. conduct audit

figure out things they should protect as a trade secret; "data classification" exercises are more common

2 preserve secrecy

o Lock written material
o Secure computer-stored knowledge with firewalls and encryption
o Impose confidentiality restrictions
o Regulate visitors
o Ask employees, customers, and biz partners to sign nondisclosure agreement

how long do trade secrets last?

they last FOREVER so long as you derive economic value from them and you protect their secrecy

do you register trade secrets?

NO! don't need to

demonstrating misappropriation for trade secret

· Happens when one improperly acquires or discloses secret info
· If someone accidentally happens upon the info without knowing it was secret, EXEMPTED

independent creation

just happen to come up with same Coca-Cola recipe for their soda; EXEMPTED

reverse engineering

take something apart, and recreate it; EXEMPTED

employee mobility and trade secrets

Employers require employees to sign confidentiality contracts promising not to disclose what they learn in the workplace and well as non-compete contracts

enforcements of trade secrets: civil cases

-Trade secret owners can get an injunction (order by a judge either to do something or to refrain from doing something)
-Owners can obtain damages from people who misappropriate trade secrets

enforcements of trade secrets: criminal cases

Economic Espionage Act (EEA)
-Considers stealing trade secrets a crime

Punishment
-Individuals-fines and up to 10 years imprisonment
-Organizations-up to 5 million in fines

Provisions
-Makes one liable for standard trade secret misappropriation
-Addresses misappropriation to benefit a foreign government

patent law

-New invention -> legal monopoly for period of time (only company who can sell, import this item)
-Creates an incentive to create more inventions and make money effectively

types of patents

utility, design, plant

who do you register patents with

USPTO

utility patent (useful, function)

machines, processes, compositions of matter; 20 years from filing date

design patent (appearance of article)

new OG design of article of manufacture - 15 years from issue date

plant patent (less concerned)

new variety - 20 years from filing date

obtaining a patent

Patent: exclusive right to invention

1. File an application
2. Filing fee
3. Explain the invention
4. Show difference from prior art (things that have already been invented)
5. Describe patentable aspects
6. Evaluation by the patent examiner

America Invents Act (2011)

· Revised from a first-inventor-to-invent system to a first-inventor-to-file system
· Prior to the Act's passage, the Us was a first to invent country

subject matter

Validity of a patent can be tested by scrutinizing its subject matter

categories of SM that can't be patented

-Do not represent true inventions
-Mere ideas are not patentable (must be reduce to practice)
-Laws of nature, natural phenomena, mathematical formulas
-General biz concepts vs "methods" or "processes" are tricky --> taking patentable ideas and saying "done by a computer" isn't enough

characteristics of patents

novelty, non-obviousness, utility

novelty

· Something new and different from the prior art
· Cannot have been published, sold, or put in public by inventor > 1 year before

non-obviousness

· Ability of an invention to produce surprising or unexpected results
· Brake lights under car= too obvious

utility

· Must do something useful
· Things that don't work don't count

purpose of law (patent enforcement)

To allow inventions in the public domain after the limited period of legal property right

patent owners can sue…

against infringement for injunction and damages

KNOW THIS

Inventions can cover methods and articles that can overlap

exploiting a patent

-Right is to exclude from making using selling importing
-Depending on circumstances may be able to make it yourself (see overlapping rights)
-May want to license your invention to other(s)

overlapping rights

· provide an opportunity for firms to purchase patent rights and sue companies

patent trolls

-companies that buy up other peoples' patents (intangible personal property)
-only want to sue people for violating that patent, even if it's your own patent
-Don't contribute much to innovation environment/add no value to economy
-Subject to fines if the claims of infringement (violation) are vague and unsupported

trademarks

PRODUCTION MARKS FOR GOODS AND SERVICES; Marks on what is produced to represent the origin of goods and services -> Recognizability of distinctiveness -> Protection against confusion

Marks protected by Lanham Act of 1946

· Trademark: marks for goods
· Service mark: indicate origins of the services (Spotify, Facebook, Venture consulting, Rotten Tomatoes)
· Certification mark: company that certifies someone else's things [ex. Better Business Bureau]
· Collective mark: groups coming together (NFL, NHL)
· Trade dress: the layout, color, vibes [ex. Target]

trademark registration

· Use of the mark conveys some rights
· Extra rights require registration with PTO - must be used on interstate commerce
· Mark must be distinctive - have a meaning to people/the real thing
· PTO places the mark in the official Gazette
· Registered on the Principal Register if the mark is acceptable (Have to keep renewing it every 10 years, can last forever)
· Provision of full trademark status for a name or descriptive term (To be listed on the Supplemental Register for 5 years and acquire a secondary meaning)
· TM or SM prior to federal registration; NOT NECESSARY TO REGISTER; after registering, you have the right to use ®

strength of marks

· Fanciful marks -> Make up words (Exxon)
· Arbitrary Marks -> Normal words but used in different way (Apple, Amazon)
· Suggestive Marks -> Hint at what it is (Netflix, Airbus)
· Descriptive Marks -> Describes good or service (cold and creamy ice cream) - can develop secondary meaning
· Generic Terms -> Common name of product or service (Clock)

infringement (trademark)

civil violation of a trademark; Remedies include damages and injunctions and orders to destroy infringing products; Manufacturing and trafficking counterfeit trademarked products is a criminal violation

generic marks

can lose protection (genericized); aspirin

defenses for marks

-We're not using your mark
-Never should have had valid TM to begin with; "generic"; "without secondary meaning"
-Our service isn't associated with your service
-Fair use -> Discussion, criticism, parody, comparison advertising (need to show study info)
-Blurring
-Tarnishment

· Federal trademark dilution act (1995)

Prohibits the usage of a mark same as or similar to another's trademark to dilute its significance, reputation, and goodwill

blurring

when usage of a mark blurs distinctiveness of a famous mark; "google lawn service"

tarnishment

when usage of a mark creates a negative impression about the famous company (Ben and Jerry's porn movie)

secondary meaning marks

FILL IN

copyrights

Original works of authorship fixed in a tangible medium (creative expression [not phonebook, not ingredients in a recipe]); similar to other forms of IP, but not interested in protecting ideas

requirements for copyrights

-Original
-Creative expression
-Fixed in a tangible medium (speeches would have to be recorded, stored, etc.)
*Protection attaches as soon as the 3 elements are met

do you register for a copyright?

· DON'T have to register, but it's required if you want to sue for infringement
o You can (and should) use © right away

who owns copyrights in a corporate setting

-Employees have to turn over what they did in employment
-"work made of hire" language in outsourced deals

· The owner has to establish that defendant violated his or her exclusive rights of:

o Reproduction
o Creation of/right to make derivative works
o Distribution
o Performance
o Display

length of copyright

o Author's lifetime + 70 years
o 95 years from publication or 120 years from creation for a "work made for hire" or by a company
o anonymous and pseudonymous works = life + 70 years

work made for hire

Hire a company to do something for you & you pay them in return; key words to include in contract

after copyright expiration…

the material goes into the "public domain"

first sale doctrine

Copyright holder loses all rights over a particular physical (or digital) copy once sold; once a copy of something is sold, you don't own the copyright of the master; individual copy you have, you can sell it

copyright act

Specifies that fair use of copyrighted materials is not an infringement of the owner's property; FAIR USE IS ALLOWED

fair use

includes copying for criticism, comment, news reporting, teaching, scholarship, or research (generally the same for copyrights & TMs)

factors considered by courts to decide fair use

o Purpose and character of the use
o Nature of work
o Amount and substantiality or the portion used
o Effect of the use upon the potential market

two parts of a song

· Musical composition - stuff on sheet music, notes, lyrics, not performance
· Sound recording - the performance, needs to be fixed in a tangible medium (CD, file)

pandora v spotify

Pandora - non-interactive
Spotify - interactive
further from radio play, closer to interactive

musical compensation

· Radio play - musical composition copyright holders (songwriters)

administrative agencies

· Boards, bureaus, commissions, and organizations that make up the governmental bureaucracy

reasons for agencies

· Specificity: fill in where the legislative branch can't provide enough detail for a law; laws are left to agencies to make them more detailed
· Expertise: subject matter experts on specific issues; agencies need to have lots of expertise
· Protection: assist public when business practices are causing injury; EPA (goal = to protect environment)
· Regulation: replace competition with regulation in certain areas (Georgia Power monopolizes electricity in state of GA)
· Services: administration of government programs and services (social security program)

function of agencies

· Rule making: Issue rules, regulations, and guidelines/advice based on legislative guidance, public opinion, and their own expertise
· Adjudicating: Fact finding and applying law
· Advising: Reporting info, publish advisory opinions, and send reports to Congress and President
· Investigating: Utilize subpoena power (requirement to turn things over, testify) and conduct investigations into activities and practices

types of regulatory authority

o Quasi-legislative - similar to what congress is doing in regard to passing laws; EPA makes/writes rules around air pollution
o Quasi-judicial - EPA adjudicates/hands out fines to people
o Create and enforce laws constituting the legal environment of business (not called quasi-executive, but seems fair) - EPA has the power to choose to enforce the regulation

standing to sue

Judicial review of any administrative agency's decision requires standing to sue; an outlet to challenge agencies (court)

in order to establish standing, challenging party must address

DONT NEED TO KNOW
o Reviewability
o Aggrieved party

Criticisms of administrative process relating to personnel

o Difficulty in hiring/retaining best-qualified people
o Difficult to discharge unsatisfactory employees
o Personnel in top positions are selected for political reasons

Criticisms of administrative process relating to procedure

o Delay in decision-making process
o Admin process is overwhelmed w paperwork and meetings
o Rules and regs are written in complex legal language
o Dictatorial

Criticisms of administrative process relating to substance

o Rules and regs overlap and conflict
o Actions for illegal conduct end only with consent orders
o Enforcement of laws varies over time

costs to business

o regulation increases cost of doing biz
o Consumer pays direct and indirect cost of reg
o Companies are forced to create internal bureaucracy to deal with the agency
o Cost of paperwork

costs to society

o Public is forced to pay for things that aren't needed
o Inefficient regulatory process increases cost
o Fed agencies required to publish guidelines and rules in the Federal Register, but not true at all levels

antitrust law

-purpose: regulate and promote competitive marketplace
-applies equally to small and large businesses
-Violations are serious, fines and possible imprisonment