Flashcards in First Possession Deck (37):
Possession by discovery
first in time, first in right.
Discover of land has right to land if they were the first to discover on undiscovered or unknown land.
Doesn’t apply to real property
Possession by conquest
taking possession of enemy territory through force followed by formal annexation of the defeated territory by the conquest.
Law of ascension
by labor alone allows one to try to claim property. Indians were a part of nature not working the nature. Limitation on acquiring: there must enough for everyone, only get what you need.
Progressive property theory
reject the notion that the right to exclude is essential to ownership and consider property’s social nature as key to understanding property relations. Ownership is a matter of obligations and rights. Reject the idea that any one value or good is the foundation of property. Pluralististic concept including individual autonomy, personhood, security, equal dignity and community.
The Rule of Capture
A person who first captures otherwise unowned resources is entitled to the resources. Whoever is prior in time wins.
Capture of Wild Animals
Capture is required to obtain an animal. Merely chasing the animal is not enough. Reasons: (1) Competition (2) Ease of Administration
Acquisition by Capture: Pierson v. Post
(fox hunting)Property in wild animals is only acquired by occupancy, and pursuit alone does not constitute occupancy or vest any right in the pursuer
Rights to Water, Oil, and Gas
Subject to rule of capture: whoever finds it first get a superior right
3 Elements of Property Rights - Demsetz
1. Expectations of land
2. Benefits of Land
3. Consent of peers to alter
people who are closest to the water will get the water
valuing something more if you own it. Irrationally holding onto something because you have ownership over it. The theory that if you give someone something, the land will be sold for the highest value person for the land
Utilitarian theory of property
Dominant view. Primary function of property rights is to promote the efficient use of resources
International News Service v. Associated Press
(stealing news based on time difference) Publication for profit of news obtained from other news-gathering enterprises is a misappropriation of a property right
to own a piece of property butt not own it completely. A type of relationship with the object but not ownership of the object
1. Owner of a valid copyright
2. D copied the work
3. The copying was so much that the two works are substantially similar
Sine qua non
Copyright of originality. Work must be original to the author
Fair Use Analysis - 4 Factors (Harper - Ford's biography)
1. The purpose and character of the use
2. The nature of the copyrighted work
2. The substantiality of the portion in use in relation to the copyrighted work as a whole
4. The effect on the market of the copyrighted work
Fair Use - Definition
an affirmative defense to a claim of copyright infringement providing an exception from the copyright owner's exclusive rights in a work for the purposes of criticism, comment, news, teaching, scholarship or research.
Doctrine of Discovery
you have claim to a title of land that is previously "undiscovered". It reaffirmed the right of European nations to their land because the European nations had already been discovered.
Indians have right to ancient Indian artifacts - inalienable property
Locke's Labor Theory
Law of Accession. One acquires property through the use of land by labor and altering the state of the land by their labor.
Outsiders only a right to what was left for others. Don't take too much and leave some for others.
intent to capture and restrict animals natural freedom
According to the soil, property rights to landowners over resources found on their land. Owner of land has possession of wild animals on an owner's land
Wild animal, doesn't become property until it is in firm possession by taker
Prior Appropriation Doctrine
The person who first captures water and puts it to reasonable and beneficial use has a right superior to later appropriators
Extra costs, external benifits. When some person makes a decision without taking into full account the effects of their decisions on others.
a. Encourages misallocation of resources
b. Free-rider problem
c. Can be negative
d. Apply to box of four: LIABILITY
Primary function of property rights
to achieve a greater internalization of externalities (beneficial and harmful effects
rights exercised by all members of the community. Can over benefit without paying costs
Tragedy of Common
resources owned in common will always be abused without government intervention
Right to Include/Exclude
right to permit or deny one use of possession
intent to capture and restrict animals natural freedom. Whoever deprives the freedom of the animal gets it pursuit is not a possession
when fugitive resources escape they are restored to their natural and free state and become common property
published news, makers keep even Indians
1. Holds valid copyright
2. D copied the work
3. The copying was an improper appropriation – the copyright holder must show that the D copied so much of the original material that the two works are substantially similar
the copyright holder must show that the D copied so much of the original material that the two works are substantially similar