Property Law: Intellectual Property, Alienability of the Body, and the Public Domain

Course Logistics and Personnel

• Canvas Page Updates: Students are directed to the Canvas page for updated notes and question pages for upcoming assignments.
• Lecture Slides: Slides are now available through the previous class and will be posted on a regular, ongoing basis.
• Syllabus Revision: A new version of the syllabus is posted online. Key changes include:     * Office Hours: Office hours have been moved earlier in the day, specifically immediately after class, to avoid conflicts with the Constitutional Law class.     * Teaching Assistants: The TAs for the course are Mobin Khan and Michael Meyer. Students are encouraged to reach out to them or the professor directly with questions.     * Review Sessions: The TAs will be holding weekly review sessions; details are forthcoming.
• Schedule for Team Assignments:     * Assignment 6 (Thursday): Teams include Cross, Tannenbaum, Kaminsky, and Zerevsky.     * Assignment 7 (Tuesday): Teams include Holtman, Kim, Maura (pronounced "Mora"), and Silsby.
• Upcoming Reading (Assignment 6): This assignment is divided into two parts: 6A (Trademarks) and 6B (The Law of Finders).

Theoretical Framework: Flexibility vs. Rigidity in Property Law

• Current Unit Focus: The course is currently exploring what property does and how it works as a body of law, focusing on establishing and defining ownership rights.
• Legal Malleability: The current cases demonstrate situations where the law is flexible and decisions are made based on individual justice or broad social policy goals (e.g., quasi-property interests, constructive possession).
• Upcoming Shift: Starting next week, the course will pivot toward more "rigid," "clear," and "formalistic" areas of law, such as:     * Adverse Possession.     * Law of Estates and Future Interests: This unit will involve specific doctrines, rules, and clear "right or wrong" answers. These interests are often stable for centuries and do not spontaneously evolve.
• Key Concept: The Right to Exclude and Alienability: While the right to exclude has been the focus, the current discussion shifts toward "alienability," which is the right to transfer property via sale, gift, or estate inheritance.

Property in the Human Body: Moore v. Regents of the University of California

• Case Context: The court addressed the scope of property interests in one's own body, specifically regarding a cell line developed from John Moore's spleen.
• The Right to Exclude vs. Alienate: Moore had the right to exclude (doctors could not remove the spleen without permission), but the court questioned whether he had the right to transfer/monetize his cells.
• Legal Outcome:     * Moore was successful in a tort for breach of the right to informed consent.     * Moore was unsuccessful in claiming a property interest in the patented cell line. The court viewed the cell line as a combination of raw materials and the intellectual efforts of scientists.
• Employment Context ("Work-for-Hire"): The patent was held by the University of California because the scientists were employees of the university.

Paternalism, Autonomy, and the Market for Body Parts

• Current Restrictions: Laws generally allow the donation of organs (e.g., kidneys) but prohibit the sale of them.
• Arguments Against a Market for Body Parts:     * Protection of the Vulnerable: Concerns that people in privileged positions might take advantage of the poor.     * Forced Consent/Coercion: People might be forced to sell body parts to pay off debts.     * Information Asymmetry: Potential for pro-sale parties to profit from individuals who do not fully understand the long-term health repercussions.     * Commodification "Slippery Slope": Allowing the sale of kidneys could lead to the normalization of human trafficking, prostitution, or predatory human drug testing.     * The "Sticky Staircase" Metaphor: A counter-image to the "Slippery Slope." It suggests that legal changes can be incremental and difficult to advance (like pushing through molasses), allowing for regulation and reversals if unintended consequences occur.     * Cultural/Religious Sanctity: The Western/U.S. notion that the body is sacred and that monetization violates this sanctity.
• Arguments For a Market for Body Parts:     * Libertarianism/Autonomy: Preventing a person with limited options from capturing the value of the one resource they have (their body) is seen as paternalistic.     * Supply-Demand Mismatch: A market could address the tragic shortage of organs (eyes, hearts, livers, kidneys).     * Economic Context: In Britain (NHS), long waitlists for dialysis make the lack of kidneys a severe problem compared to the U.S., where Medicare covers dialysis for renal failure.
• Alternative Systems:     * Post-Mortem Sales: Allowing individuals to contract their bodies for money after death to benefit their heirs.     * Opt-Out Systems: Moving from an "opt-in" to an "opt-out" organ donation system, which reallocates property rights toward the public good unless an individual explicitly retains them (Code's Theorem application).

Overview of Intellectual Property (IP) Categories

• IP Definitions and Rules:     * Four Pillars of IP: Patent, Copyright, Trademark, and Trade Secret.     * Patent Definition: A patent does not give the owner the right to make the product; it gives the owner the right to stop others from making, using, or selling it.     * Patent Requirements: Novelty, utility, and non-obviousness. If a product has been on the market for over $1\text{ year}$, it generally lacks novelty and cannot be patented.     * Copyright Distinction: Protects the expression of an idea, not the idea itself or the procedure (Idea-Expression Distinction).
• Trade Secrets: Examples of lucrative secrets include the Coca-Cola formula, the McDonald's "Secret Sauce," and the Google search algorithm (which was never patented because a patent would have expired, revealing the secret).

Patenting Life: Diamond v. Chakrabarty

• The Invention: Ananda Chakrabarty created a genetically engineered, oil-eating bacterium that did not exist in nature.
• Legal Dispute: The patent examiner rejected the claim, arguing that living things cannot be patented.
• The Holding: The Supreme Court ruled that the bacterium was patentable under Section 101 as a "composition of matter."     * Reasoning: The term "composition of matter" is broad and does not distinguish between inanimate and animate matter.     * Precedents: The Plant Patent Act of $1930$ and the Plant Variety Protection Act of $1970$ already allowed patents for certain types of plants.
• First Patented Mammals:     * OncoMouse: A mouse genetically engineered to be highly susceptible to cancer for oncology research.     * Others: An immunocompromised Beagle for medical research and a rabbit with corrupted eyes for corneal research (these were later challenged and revoked by animal rights groups).
• Human Organisms: The America Invents Act ($2011$) explicitly prohibits patents on a "human organism."

Copyright and the Modicum of Creativity: Feist v. Rural Telephone

• Context: Rural Telephone Service Co. (a local monopoly) published a phone book consisting of White Pages (alphabetical listings) and Yellow Pages (advertisements).
• The Dispute: Feist, a regional publisher, copied the White Pages data from Rural after Rural refused to license the database.
• The Evidence: Rural had inserted "seed names" (fake people) to detect copying. Feist included these fake names in their version.
• The Holding: The Supreme Court ruled in favor of Feist, holding that facts (names and phone numbers) are not copyrightable.     * Rejection of "Sweat of the Brow": Copyright is not a reward for hard work (effort) alone.     * Originality Requirement: To copyright a compilation of facts, there must be a "modicum of creativity" in the selection and arrangement. Alphabetical order by definition is not creative.
• Antitrust Angle: A separate case found Rural guilty of an antitrust violation for using its local telephone monopoly to attempt an illegal monopoly on Yellow Pages advertising.

Copyright Term Extensions: Eldred v. Ashcroft

• The Statute: The Copyright Term Extension Act (CTEA), often called the "Sonny Bono Act" or the "Mickey Mouse Protection Act."
• The Extension: Extended copyright duration to the life of the author plus $70\text{ years}$ (up from life plus $50\text{ years}$).
• Constitutional Challenge: Plaintiffs (including Eldred) argued this violated the Copyright Clause's requirement that rights be for "limited times."
• The Holding: The Supreme Court upheld the extension, ruling that while life plus $70\text{ years}$ is long, it is still a "limited time."
• Public Domain Impacts:     * Robert Frost Poetry: The plaintiff wanted to publish a compilation of Frost's work, which would have entered the public domain but for the extension.     * Mickey Mouse (Steamboat Willie): The original version of Mickey Mouse has recently entered the public domain. This led to non-Disney-approved derivatives such as the horror films Screamboat and Mouse Boat Massacre.     * Winnie the Pooh: After entering the public domain, the character was used in the horror movie Blood and Honey.
• Dissent: Justice Breyer (a former Harvard copyright professor) dissented, arguing that retroactive extensions do not incentivize new creativity, as the original creators (like Walt Disney or A.A. Milne) are already dead.