IP Seminar: Study questions, week one

John Locke

  1. According to Locke, how does “property” arise? When does it arise?
  2. Is Locke concerned that people will get greedy and take too much? Or does he think that people will leave things available for others to take and own? See Sec. 27, 31, and 33. Are you convinced?
  3. Under Locke’s theory of property, how long should property rights last?
  4. Could Locke’s theory of property be used to justify property rights in:
    1. An apple you pick from a tree in the woods?
    2. An apple tree you plant and grow?
    3. The land you plant it on?
    4. A theory of gravity that you formulate after being hit in the head by a falling apple?
    5. A book about an apple and the theory of gravity?

U.S. Constitution

  1. The U.S. Congress’ powers to legislate are found in Article I of the Constitution. Article I, section 8 contains three clauses of interest. Might those clauses be used by Congress to create or protect “property” rights?
  2. What kind of laws can Congress create under clause 8? Under clause 3?
  3. Could Congress create any law by using clause 18? Why or why not?
  4. Read clause 8 very carefully.
    1. What justification for property rights does clause 8 provide? Is it similar or different from the justification for property provided by Locke?
    2. Could Congress create legal rights that last forever? Why or why not?
    3. Clause 8 grants Congress the power to create “exclusive” rights. If authors and inventors have exclusive rights over their writings and discoveries, would that advance the creation of knowledge or would it hinder it?

INS majority opinion

  1. What is this case about?
    1. Who started the lawsuit, INS or AP? Why?
    2. What does the complainant want the court to do?
    3. What court decided this case? State? Federal? Trial court? Higher court?
    4. What was going on in the world when this case was being litigated?
    5. What kind of technologies were used by the litigants to disseminate their news stories?
  2. The law and reasoning:
    1. Is this a copyright law case? Why or why not?
    2. What does the majority mean by “quasi property”?
    3. What role does competition play in the majority’s reasoning?
    4. Is the majority willing to provide relief to the complainant? What kind?
    5. Suppose the complainant sued you for copying and republishing news items. Who wins? Why?
  3. Is there a property right in news? What does the majority think? Should there?

INS Holmes dissent

  1. A “dissent” is generally an opinion by one or more judges outside of the majority that explains their disagreement with the outcome of the majority opinion. A “concurrence” is generally an opinion that agrees with the majority’s outcome but disagrees with the majority’s reasoning for that outcome. But don’t get too caught up in the labels of dissent and concurrence. Sometimes a dissenting judge will agree with part of the majority’s reasoning.
  2. In light of question 1, how would you characterize Justice Holmes’ dissent? Does he agree in part with the majority? Where does he disagree?
  3. Would Justice Holmes grant relief to the complainant? What kind of relief?
  4. Justice Holmes says: “Many exchangeable values may be destroyed intentionally without compensation. Property depends upon exclusion by law from interference, and a person is not excluded from using any combination of words merely because some one has used it before, even if it took labor and genius to make it.” What does he mean?
  5. Holmes says: “The ordinary case, I say, is palming off the defendant’s product as the plaintiff’s but the same evil may follow from the opposite falsehood—from saying whether in words or by implication that the plaintiff’s product is the defendant’s, and that, it seems to me, is what has happened here.” Meaning?

INS Brandeis dissent

  1. Justice Brandeis says that knowledge “become[s], after voluntary communication to others, free as the air to common use.” What does he mean?
  2. Does he think that the complainant (“plaintiff”) can get relief under existing law? If your answer is “no,” where does he think the complainant should seek relief?
  3. Whose opinion in INS do you find to be the most persuasive? Any? Why?
  4. How would you characterize the theories of “property” underlying each opinion?

Nathenson law review article:

  1. What is IP?
  2. Why is IP?

Posted Jan. 5, 2023