I.

Monday A. Background 1. Last class of first two units, very conceptual units, what can be property, how can things be property, whose property do they become and why? Out of bounds issues, 2. Intellectual property all created by statutes, as opposed to common law doctrine 3. Second is possibility of non-rival risk consumption, unlike land/object, copiers use does not interfere with original owners use to use it. Right to exclude not necessary for use and enjoyment 4. Moral rights argument, author has special stake in creation, talks about authors, some person behind this thing, behind intellectual work, some basis for giving author the control 5. Another one is economic argument, incentive, without protection from creator s rights or ability to control work, people won t create it, it is social value, used to promote progress of science and useful arts, socially desirable to provide some protection. 6. To promote progress , by providing property for limited times. B. Eldred v. Ashcroft 1. How much does Congress has to show that they are promoting Congress, and what do we mean by limited times? 2. Whether CETA fails under limited times and first amendment free speech. 3. CETA extends copyright 70 years after authors death, before that rule in copyright was 50 years (this was 1976 law for works created post 1978). In 1998 Congress changes it to life plus 70 years for natural and 95 for corporate works, and was retroactive. 4. Arguments petitioners make is a. limited times means fixed, once you have done it you can t change it, but this is weak because Congress has changed it in past, 19 times, so a lot of times, regularly changing it. b. Custom, have been doing this forever, every time we have an extension we also applied it retroactively. Justice, policy, and equity (work published day before extension and day published day after should be treated the same). 5. Congress was doing this for two reasons a. International community (Berne Convention), nations respect each other copyright laws and enforce, greater parity with other people in convention, better protection for existing copyright owners, better protection in other countries b. Mickey Mouse situation, Disney was lobbying. 6. Ginsburg a. Quid pro quo argument includes extension, copyright owners looking at pattern of past is benefit of future extensions, nice way of working in custom into incentive, incentive includes expectation of benefit from future extensions.

b. Also, footnote 21, standard copyright agreements usually have this in their agreements, so must feel this way. c. Congress could conclude that this kind of reward was necessary for our nation, called international reciprocity, doesn t say it s right just plausible. d. Some combination that copyright owners were expecting this and it will give them protection in Europe or Asia, still hard to see how this operates as retroactive award, but benefit. e. Her views on the costs: Merges with first amendment discussion, cost in terms of expression are minimal, there are already built in safeguards (fair-use doctrine), copyright is first amendment friendly as it produces speech. They are allies for public expression, built in accommodations (fair-use doctrine), which means you can use copyrighted works for purposes of scholarship and commentary. f. Also, have fact versus expression dichotomy, copyright doesn t protect facts that are discussed or ideas, just ways they are expressed, so you can still educate this way. (INS didn t get to control news, just way you present news) 7. Breyer a. Does two things, one is that if you look at value of time as of moment you publish the work, money that is received later then the same amount of money now. Benefit you get later is worth less now. b. Economically, this is the functional equivalent of infinite, no more economic gain from present. Works that in to limited times idea, but also into the promoting progress as an incentive idea, there is no value so there is no incentive. You have already gotten all of the value out of the object. Real winners right now are publishers and filmmakers, not the actual creators. No one is going to create something so his great-grandson gets paid. c. And how can this be an incentive to already existing works, they are already produced, can t have an incentive to produce something that already exists, no consideration here. But plaintiffs were arguing this one, ones that already exist, this doesn t promote progress. d. Congress has two things here, limited times and promote progress. Answer to limited is we have always done it this way (so what?) and it might as well be no limit, has to go. e. It can t be an incentive (Promote Progress) more than fifty years after your dead is minimal even more so if it is already in existence. f. Technical argument it is not limited, hard to define what is limited, technically any limit is limited, but as you move out to promote progress, hard to see how this promotes progress. 8. Stevens a. Weren t doing it in the beginning, so not really applicable to say look back on history, by 1831 all the framers were dead/out of Congress 9. Also the costs of copyright extension

II.

a. Exclusion b. And tracing costs: greater difficulty is finding out who copyright owner is, may be hard to track down talk to copyright owner c. Also educational costs, may be hard to train our youth. 10. Dissent says there is a public interest, majority says we should trust Congress to set the balance between public and private, how do you draw the line, public value on both sides, access to information versus generating information, and some privatization is probably good. C. Posner argues incentives are not just for creation, but for long term adjustment, exploitation. Indefinite renewability, works will separate themselves, more economic ones can keep renewing themselves, low value works won t. Low commercial value will expire, don t have much value to holder but denying everyone else right to use them, dumb. All turns on a question no one knows answer to, how much reward is needed to incentivize, true that some reward will increase production of ideas, but no one has a clue how it will work. And if no one knows, let s leave it to elected decision makers (although it is true they may be captured by lobbyists). Tuesday A. State v. Shack 1. Tedesco farmer, landowner, and employer. He has migrant worker employees, who live on his land. 2. He brings criminal complaint, trespass, doesn t stand at property line with shotgun, makes them an offer, will let you on under my conditions, can meet with them in my office and talk to the people, offering access. 3. Wouldn t allow door to door salesman or certain other people, but because you wanted to give access for health, can come 4. Court says it is not trespass, even though owner says no, can t deny people living there basic rights to human dignity, property right not absolute. Human values on other side, put some blame on landowner, because of the state of the conditions, their plight alone that summoned government to their aide a. A lot is going on here, seems to be public policy issue here, matter of state common law. Migrants were in an unusual position, and so were in need of greater position than they otherwise could get. 5. Migrant workers in general have lousy situation, have right to meet with them on their own, talk to them independently. A lot of this has to do with fact that they are there as his workers, open himself up to some regulation to the employment, if it is on his premise, so be it. a. How far does that go though. 6. Government s Special Interest a. So about migrants and special interest b. Also sense of isolation, speaks to people in rural setting, no opportunity to get off the premises and get help, work and home is same place.

c. Dignitary interest of employee, can t include dominion over people who come on premises. More general notion of rights of people who are invited on the premises. Tedesco has opened up to these lands to workers (he thinks on specific terms), thinks he controls it, but he has opened it up and can t control the terms, some limits. Having opened up land to people who live there, stuff comes with it. 7. Owner s Interest not Enough a. A couple of restrictions, security (make it safe) and not open public and can t interfere with production. b. Also nature of the premises. Almost turned it into a nuisance case, right to exclude in this case turned from end to means, use and enjoyment, economic production is point, what is it people are going to be doing when they open the place up on a regular basis, what are they expected to do, do they lose control of the terms of access. 8. When people show up do they bring rights and interests of their own, specific case about migrant owners on farm company when government wants to protect them and no other way to protect them, broader way to look at it is human interests versus property rights of owners, what kind of dignitary rights do we want to give to visitors. Having opened up property, might be controversy, when you open it up to people can t always control what those people do, consequences to your action B. Hamidi v. Intel 1. Former employee of Intel, classic disgruntled employee, sends a bunch of emails to Intel 2. Restatements. Trespass to chattels (thing, personal property). Physical things that are not land, great divide in property is land (real property) and other stuff (personal property or chattels). Movable as opposed to being fixtures in land, things that are not land a. Elements of trespass to chattels, dispossession without injury, or if no dispossession has to have intentional that results in harm, division is whether or not there is another object after harm. Majority is saying has to result in harm to chattel, dissent says harm to person. 3. Intel argues there was harm because a. Distraction of employees b. But there was no harm to the functionality of the computer system (unlike in compuserve and ebay, where amount of spam so enormous system was overwhelmed to it broke down or slowed). c. Intel has privilege to try and block him. Not violating any rule or denying right of his, but when he enters, doesn t appear he has created any harm, neither can call upon the state to stop the other. 4. Richard Epstein makes new argument, time to recognize this right in new age, but should start to be liability for use of the property of another, it is Intel s property, should have right to control how it is used even if it doesn t hurt.

III.

5. Argument that once you opened property up, you can t ask for state for help, created economic system with all sorts of values to you, but also have costs, in this case cost is having other people coming, weird case that says he has no right to do what he is doing but we aren t going to stop it. 6. If you can figure out way to keep him off, that is fine, but state has no right to get him off, Hamidi has no right of access, but no power to call upon state to support their right to exclude. 7. Kind of like Moore case, and dissent of this case (Mosk) is same defender of Moore, property rights defender of first case, might have other means to go about this, don t have to attack it because of property, other legal claims. Wednesday A. Background 1. Have some self-help, then come back and look at different cases for right to exclude and right to access, B. Berg v. Wiley 1. Self-Help problem: landlord tried to repossess land he had leased to tenant, terms of lease said he could if he violated any lease terms (can t structural change anything without consent and will operate restaurant in accordance to law), and landlord has the option to retake in this situation 2. Landlord is making argument that he breached the lease in both clauses, making changes and all kinds of health violations. He gives her two weeks to fix it, he says time to leave. She has sign that says remodeling, have a fight Friday kind of, and on Monday he comes back when she is not there and changes the locks. 3. She didn t abandon the property, but uses self help, by getting locksmith and police offer and changing the locks. 4. She is suing landlord for wrongful eviction, he did self-help in non peaceable manner. So can t use this. Had to have both entitlement to possession and be peaceable. Actual repossession was non-violent, but ascribes a lot of this to berg s restraint, if not for this restraint would have been violent. 5. And court ends up deciding that self-help is a bad idea, so get rid of it anyway, do it through judicial process anyway. We prefer running it through legal process, don t want owner to be judge of his own rights. Self help is ok if no other way to provide help, but if there are legal means don t do it. Self help inherently has potential for violence C. Williams v. Ford Motor Credit Company 1. Husband pays for car, divorce, stops making payment, FMCC tries to repossess car at 4:30 AM, says there is stuff in car, perfect gentlemen and let them take stuff out 2. Acquired the car lawfully, so the way it is conversion if it is taken back by force or under force of threat, UCC. Don t need judicial process if it can be done without breach of peace, sounds a lot like rule that was in place in Minnesota in Berg case 3. People show up at 4 30 in morning, seems like there should be potential for violence.

4. Two different stories, one is perfectly nice repo men who gave items back, other is mom with kids woken up in middle of night, jury found verdict for defendant but court ignored jury, if you debate leave it to community (jury), they found it was not peaceable. 5. One reason not to contact her in advance was it was highly movable automobile, if you knew they were coming, move the car, can t really move the house if they are coming, higher need for self help because higher possibility property can be moved. 6. Also, give debtors better credit, maybe this is the only way they can get this credit (higher interest rate, higher down payment, something else to hurt debtor). D. Ploof v. Putnam 1. Dark and stormy night. Boat is tied to dock, untied and gets bashed, owner of boat sues for trespass onto his boat. 2. Preservation of human life is important, especially compared to property rights, can trespass to save lives, property serves human values, so normal right to exclude doesn t exist when there is necessity, much more important. 3. Not merely that threat to life gives sloop right of access, but right of access which they can use to rebut to exclude them, they did nothing wrong but they were sufficiently entitled that it was wrong on part of the dock owner to kick them out, not just privilege of action, but strong right that dock owner can not touch. It is flipped, trespasser has right over owner. 4. If boat is tied up to dock and damages dock, boat owner pays for damages, restitution. E. McConico v. Singleton 1. Land that wasn t enclosed or improved on, and it s hunting season. If there is deer on land, hunting follows. Talk about custom, people have always hunted. 2. If usage can make law, none was better established, usually with custom have to have some kind of other thing to. For trespass, has to be some kind of injury to support it (trampling grass doesn t count), have to have some kind of injury, riding over soil is not injury. 3. It seems like in Jacques, didn t have injury, but here needed it for injury, why? 4. Custom is important because it helps militia practice with their gun, common value with land open, when people go hunting they can keep up military skills, war of 1812 just ended, time of warfare, need to be safe. Public benefit, need practice. A lot like argument Rose makes for beach, social value, real public benefit and national security benefit. Akin to have navigable waters for commerce, beach, parks. 5. Can he change nature of property by fencing it 6. From most rights to least rights of landowners . 7. In Jacques you get right to exclude and state backing it up 8. In Hamidi, Intel has power to exclude but state won t back it up (self help) 9. McConico, no right to exclude but you can change that (by fencing property in). 10. State Shack, no right to exclude at all and state will make sure you don t

11. Ploof, no right to exclude and you can be sued for excluding F. Uston v. Resorts International

Copyright and Other Term-Limited IP Rights Limited to fix terms. Tradeoff, we want to provide incentive to inventors and creators to discover new inventions and create new works of expression, don t want to interfere unduly with flow of information available to public. So compromise, give inventors and creators right to exclude others from using their innovations, but put time limit on how long this exclusion can be exercised. Length is thus critical in determining the balance between conflicting objectives. Lawarence Lessig: Free Culture, Nature and Future of Creativity: When federal government passed copyright laws, got rid of any state copyrights. In 1790, created first copyright and ensured it for 14 years. If alive, person had option to renew for another 14 years, although vast majority went into public domain. This way, maximum terms for copyright only when people wanted it. First, increased it by having initial period by 28 years so total was 42. Then made renewal period 28, so now maximum was 56. Beginning in 1962, began extending both existing copyrights and future copyrights. This was to toll, or delay, passing of workings into public domain. The US also abandoned the renewal period, just did maximum term. For natural authors, term fifty plus years, for corporations it is 75 years. After this, seemed that works would never even go to public dominan. This is crucial. In 73 (right before this was passed) 85% of owners failed to renew. Bad for public domain. For Lessig, IP derogates from public domain, economic factor, information is nonrival, so correct price for utilizing information should be zero. Also has fair use distinction to make sure restriction isn t greater, also formalities like registration.

CASE Eldred v. Ashcroft SC 2003 page 1089, Ginsburg FACTS People who profit off things in public domain dont like the new legislation. Its not that the change from 50 years to 70 years was bad, they are upset that lengthening applied to copyrights on already published works. Congress enlarged duration of copyrights by 20 years in 1998 with article 1 section 8 as justification. Petitioners are people whose works depend on copyright material that has gone into public domain, want to prove that Copyright does not meet constitutional review under both Copyright Clauses limited times preceription and Freedom of Speech guarantee. PROCEDURE Authority Constitution assigns Congress to prescribe durations of copyrights. They say in enlarging term for published works with existing copyrights, no longer limited time, and also say CETA is content-neutral regulation of speech, so no. Lower courts found they had authority under Copyright Clause to extend existing copyrights. ISSUE 1. Is the limited time in effect when a copyright is secured a clear line beyond which Congress cant touch? 2. Is CETA a content-neutral regulation of speech that fails inspection under heightened scrutiny appropriate? HELD Reject the challenges. 1. Doesnt violate the limited clause, fits right in based on the definition of limited, and was within the scope of Copyright clause (makes sense because of domestic/international concerns). 2. Doesnt violate freedom of speech any more than it already had done, distinction between ideas and expressions important. ANALYSIS Just like past copyright bills, very similar for how they were applied. Petitioners argue that a time prescription, once set, becomes forever fixed or inalterable. However, the word limited in the Copyright Clause is not this narrow, so a timespan

appropriately limited as applied to future copyrights does not automatically case to be limited when applied to existing copyrights (use the dictionary as basis). Page of history worth a volume of logic, look back at what Congress had done before, unbroken practice of granting authors with existing copyrights benefits of extensions to it becomes all even. Also did this with patents. In past Court did not find any constitutional barrier to legislative expansion of existing patents. As a legislature put it, justice policy and equity forbid that an author who had sold his work a week ago be placed in a worse situation than the author who should sell his work the day after the act. Because of all of this, cant defeat it. Now that we proved limited times is chill, now see if it is cool under the authority of the clause. They decide to defer this to Congress. Shouldnt judge what Congress is doing, although probably doing it right since they are copying the EU one. This way, American authors in Europe can get the same copyright protection as European authors (otherwise they couldnt). Also, domestically, trying to get people to invest in restoration and public distribution of their works, giving them longer copyright protection will help them do this. They find CETA is rational enactment, not their place to second-guess congressional determinations. They also try to argue other parts of PETA go against Copyright Clause, like promoting progress of science. They argue it does not stimulate the creation of new works, but merely adds value to works already created (since it is in the preamble, its important). However, it is not up to the courts generally, but Congress, to figure out how this best fits in, and since Congress has been doing this forever it is clear they are within their rights. With the this for that (quid pro quo) argument, doesnt hold water because, once again, Congress has already done this. Its not like intellectual property, you can use the information you learn, if you read a book, doesnt make it unfair. As for first amendment, copyright clause and first amendment adopted at similar time, so it seems copyright purpose is to promote creation and publication of free expression, gives economic incentive to create new ideas. It also has first amendment stuff in it, first distinguishes between ideas and expressions, only expressions are available for protection. Idea/expression distinction (it forbids copyrighting ideas), so every idea is free for public exploitation, so that argument doesnt work. Secondly, fair use defense lets public use facts and ideas, but sometimes expression as well, can use it for scholarship and comment, parody. Lower courts were a little too broad when they said copyrights are categorically immune under 1st Amendment Challenges, but in this case its fine. Even if it was a bad decision by Congress, not on our wisdom to second-guess, long as it is Constitutional.

Stevens DISSENT: In opinion of 1964, unanaimous, they decided a state could not extend life of a patent, he thinks that applies to Congress too. General presumption that historic practice illuminates constitutionality of congressaional action should not apply in this case. This is supposed to apply to the first Congresses since those were the guys who wrote the Constiution, not almost 100 years later. Dont have to look and see if the new time limit is too much, not our job, just see if applying them retroactively is bad. And its bad, would obviously violate limited times. Breyer DISSENT: Point of this is to make copyright term not limited, but virtually perpetual. Primary legal effect is heirs now get protection, practical effect inhibits progress of science (which framers meant learning or knowledge). Copyright Clause and First Ammenmdent, working together, trying to help free expression and ensuring government does not block it. Worth taking another look and reexaming the first amendment issue, what may fly for regulating the economy may not for regulating expression, especially in a country so particular about it. So he looks at three things, if the benefits are public or private, if threatens to undermine value the Copyright clause embodies, and if it cannot find justification in any Clause-related objective. If this is the case, Congress is wrong. Copyright was supposed to be for the public, are two costs which can prevent public from getting works (royalties and search costs). The new law gives more royalties to existing holders (from public to private). Also, with this extension, will be super hard to try to get extension. As for proposed benefits, cant really say its economic, hard to argue people will be more interested now monetarily, if you argue that someone will like their great-grand children benefitting they will also like forever, till the end of time, seems to mean this violates Limited Times. Also, they rely on international, they shouldnt. Statute does not create unforim AmericanEuropean term with most ecomically significant works (for hire and prior to 1978). Yes, uniformity post 1978 with natural authors, but very small minority of works, wont help any authors. Lastly, even if argument is true that publishers will now be more willing to re-publish, that wasnt part of the original plan, shouldnt matter. This is really bad, for education, for new techonology, really bad. COMMENTS Primary battle ground is over history. Some argue history points to a move away from monopolies, some say it looks more like monopolies. Also try to look at incentive theory, see which makes more sense.

William Landes and Posner, Indefinitely Renewable Copyright: Tiny fraction renewed, even though cost of renewal was small, and of the books published, very small amount still in print. So seems in unlimited right to renewal, public domain remain vast repository for IP use without charge. Two propositions: All valuable resources including copyrightable works should be owned in order to create incentives for efficient exploitation and to avoid overuse. Second is that copyright should be limited in duration (tracing costs increase, transaction costs may be prohibitive, it would cost the public more, incentives to IP not really affected by cutting off rights a bunch of years down the road. These five points say optimal term for protection created by balancing incentive of longer term against administrative/access costs from public goods. So second proposition denies the first and says that IP taken out of ownership an din public domain after no more years than necessary to induce creation. If we let people renew forever, wouldn t be hard to find that, tracing costs cut down. Joint ownership not a real problem, can solve it the same way they do with land (trust or corporation). Transaction costs would go up, but not ridiculously high. As for public goods argument, overstated, public going to find a copy at price closer than they want to pay, not what publisher is charging (called access cost), but because there is a monopoly, it is narrow, so only creates small cost. Composition of public domain would be better under this system, as it is divided into two categories, valuable works (where benfits of property rights exceed costs) and works of little value which shouldn t have copyright. Things like Mickey Mouse should be protected as owners will go to a lot to ensure that (lobbying). Public goods argument also suggests no benefits from continuing to protect even small number of valuable works. This assumes it is only about incentives, not necessarily true. Want to optimize current uses of property, (uses example of natural pasture, own it to prevent overuse). It is true that reading a book doesn t take away someone else s ability to read, but using a celebrity s name can diminish the value, same with a fictional character. Also incentives, too much made of distinction between creation and copying. If author is refound, want publishers to have incentive to publish again (weak). Mickey Mouse has changed over the years, so continued investment important. So can still use incentive based arguments, don t want Disney to have incentive to change Mickey. New twist is recognition that need to invest in IP to maximize value does not stop after creation.

Dagan, Property and Public Domain: Misguided that property is enemy of public domain. Neither conception of property as exclusion nor budle of rights bears any resemblance to law of property. There are numerous property rules that try to provide cooperative rather than competitive situations (co-owners, partners, communities). For bundle of rights, not a laundry list of rights with limitless permutations, offers only a limited number of standardized forms of property, should be thought of a set of institutions each of which is constituted by a particular configuration of rights. Property does not have to mean individual and exclusive, run the gambit of human interaction, from competitive to family-oriented and sharing. Also shouldn t analyze things like efficiency, culture, and political instiutions as outside of property, there all property. The public domain can benefit from using the resources that property provide. Finding balance between control and use, very interesting.

Tuesday, 401-427 (Skim)

Criminal Laws protecting real Property

CASE
State v. Shack SC New Jersey (page 401) 1971 Weintraub

FACTS
Defendants went onto private property to aid migrant farmworkers employed and housed there, didnt depart when asked by owner. Cpmplainant Tedesco is a farmer who employs migrant workers for his seasonal needs, and as part of his compensation they live on his property. Defendant Tejeras is field worker for Southwest Citizens Organization for Poverty Elimination (SCOPE), nonprofit, provides health services to migrant workers. Tedesco had previous disagreements with these defendant prior to trespass. When he heard migrant needed sutures removed, called Shack who needed to go there anyway to discuss legal stuff with worker, so went together. They ran in to Tedesco, who offered to find both men and they could meet in office, defendants said no, wanted privacy, summoned state trooper who only removed them after written complaint.

PROCEDURE
Defendants charged with violating a statute, any person who trespasses on any lands after being forbidden so to trespass by the owner is a disorderly person and shall be punished by fine of not more than $50. Defendants convicted in court, also on appeal. Tedesco did not respond to appeal to the SC, and prosecutor argued it was Constitutional but not whether statute covered activities of defendants. Thats why state is prosecutor, and Shack is staff attorney with Farm Workers Division of legal services, took up the case.

ISSUE
1. Is this statute constitutional? 2. If it is, does it apply to the actions undertaken by the defendants

HELD
Reversed and remanded.
1. Don t need to rule if it is Constitutional, because . 2. We are satisfied that under State law the ownership of real property does not include the right to bar access to governmental services available to migrant workers, hence no trespass within meaning of penal statute. Trying to help these guys, shouldn t be able to hide them.

ANALYSIS
Property rights serve human values, that is their context. Title can not include dominion over the destiny of persons the owner permits to come upon the premises. Dealing here with disadvantaged segment of society. Workers are unorganized without economic or political power, and this plight made State Legislature try to help them. If they can be blocked from this, what is the point, so in this context have to decide whether camp operators rights may stand between those who aid them. Arguably, key to the aid is communication, since they are outside of rights, need people to help them. This is crucial, dire need to protect workers and property rights cant stand as barrier, in our judgment no trespass signs represent paternalistic behavior. Governor Property right not absolute, use rights without injuring others, person with rights may find absoluteness of property rights curtailed by organs of society for promotion of best interests of others whom these organs also operate as protective agencies. Powell, recognizes that this is more important in modern society too, towards stewardship. Doesnt matter if they are tenant or not, no need to force into a specific category, find it unthinkable that farmer-employer can isolate migrant worker in any respect to well-being. Not interfering with activities of farming, allowed to receive these visitors, not opening it to general public, not a security threat (stated their purpose).

COMMENTS
Unlike in Jacque, conflict between rights of property owner and rights of persons, not in Jacques. Discuss rule versus standard, rule is if x goes into y, evict, standard just says take into account a bunch of different factors. Statutes bout trespass have minimal fines, not deterring anyone, so are they supposed to turn to self help? So make statutes so police can get involved, not overreact. Some put burden on landowner to notify person crossing into their land, probably so good faith/bad faith can be maintained. Most criminal statutes with more fire power only apply to occupied buildings, interesting.

Civil Actions: Protect and recover property, long history. Now has evolved where you usually have to give cause of action to recover. Protecting real property: earlier in time than personal property, trespass, either money damages or specific recovery of land, protects possession. Ejectment to get rid of people in actual possession, only people in possession can bring trespass. Usually damages and injunction. Also can have nuisance, protects use and enjoyment of land, as opposed to trespass which is exclusive possession of land. As far as personal property, replevin popular because you get actual goods back instead of just damages. Trover also good for relief for wrongful conversion of personal property (now becomes just conversion).

CASE
Intel Corporation v. Hamidi SC of California (page 412) 2003 Werdegar

FACTS
Intel has email system, former employee Hamidi sent emails criticizing Intels employment practices to numerous current employees. Did not cause any functional damages, but got employees talking about it. He formed a committee called FACE-Intel (former and current employees of Intel) to be critical of practices and policies. Sent six mass emails to employees, anyone who requested removal got it. No evidence he breached security system, didnt damage or slow networks functioning. Effected work, started conversations.

PROCEDURE
Intel brought tort of trespass to chattels, trial court granted summary judgment, enjoined Hamidi from any further mailings, divided COA affirmed. Sought nuisance claim and damages in the beginning, but later waived nuisance claim and damages, just wanted an injunction.

ISSUE
1. Does the tort for trespass to chattels (personal property) include this action?

HELD
Reversed and remanded. 1. The tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. 2. It only covers interfering with condition, value, quality, or ability to use the chattel (networks werent harmed, ran the same, no difference).

ANALYSIS

It is not actionable trespass to personal property (computer system) as it does not interfere with possessors use or possession of or legally protected in property itself. The result of the emails is not any more effecting the computers than a letter would affect the mailbox or a bad call would hurt the telephone. This is crucial, dire need to protect workers and property rights cant stand as barrier, in our judgment no trespass signs represent paternalistic behavior. Governor No special immunity for emails, could be actionable for other things (interference with prospective economic relations). Can claim defamation, private facts, other torts. Not doing this because immunity for email, but because trespass to chattels needs to be proved with evidence of injury to plaintiffs personal property or legal interest therein. Also doesnt apply to SPAM, that can actually slow down/damage networks. Tort of trespass to chattels little brother of conversion, allows recovery for interferences with possession of personal property not sufficiently important to be classed as conversion, injury to chattel or plaintiffs rights in it. California law is an intentional interference with the possession of personal property had proximately caused injury. Owner may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use. Restatement too, subject to liability only if intermeddling is harmful to possessors materially valuable interest in the physical condition, quality, or value of chattel, or deprived use of chattel for substantial time, or other legally protected issue. If he sits on your car, no cause of action. Intel relies on cases with contact between computers, its interest in computers was harmed. Court disagrees. In the cases Intel relies on, actual or threatened damage to the networks. The spam threatened to take up space so actual customers couldnt use network. This was only six emails, not even a comparison. No loss of business reputation or customer goodwill from this. Difference between emails themselves detracting (other cases) and content of emails distracting. A theory of impairment by content would stretch trespass law very far. Other branches of tort law already cover this, no reason to. Also cant assert property interest in employees time. Employees are not chattel, so cant argue this, may have a cause of action in other areas, not this. Epstein wants to extend, recognize in computer services same property rights as land, like companys server is it castle, any intrusion is a trespass. Internet is a physical space he argues, look at metaphors, but metaphors double-edged sword, also called the net. However, trespass law for land right now says intangible intrusion (electromagnetic transmissions) not actionable unless they cause physical damages under CA law. Intel did not claim physical damages, so couldnt prove to trespass to land even if network was land.

Internet like other older communication telephone, fax machine, should these too be real property? Epstein thinks it is ok, most servers will continue to be open cuz that is in their benefit, if they want to keep people out can open up negotiations. Other professors disagree, think you would have to ask permission every time before emailing, or severely limit what you can send, bad, linking would be hard because couldnt follow links, also could control information for an advantage (prices). Show there is debate, not trying to decide, but one side not controlling. If someone is to create a new rule when there is so much controversy, legislature not us. DISSENT, Brown: Intel invested a ton of money in computer system, didnt want public forum but to enhance productive of employees. Sent 200,000 emails (as opposed to 6), time spent deleting them took away from utility of computer system, value to owner of particular type of chattel may be impaired by dealing with it in manner that doesnt affect physical condition. Restatements. Intel isnt mad about content, but using Intels property to display his content. Not trying to get rid of his content through other means, dont want to use Intels property to advance his message. Either way, get injunction, can allow employees to use some websites and not others. Cites North Carolina COA, reading the restatement differently, saying restatement says trespassee need not tolerate even harmless interference. Uses analogies of private property landowner (didnt want newspaper), NY COA. Intel has legal right to exclude Hamidi from system, does not have physical ability. Because he is outwitting Intel, not right but might that determines extent of partys interest. Personal liberty and social utility should counsel us to usher in common law to digital age. Mosk: Dont distinguish open communication in commons from unauthorized intermeddling on private, proprietary intranet. He isnt in town square or junkmail, private interest, no recourse unless he causes system crash. A proprietary computer system is being used contrary to owners purposes and self help is ineffective. Impaired quality and value of system as internal business device, had to incur costs to maintaining security and integrity, didnt work. Like connecting driveway to a road, difference. Relief therefore is determined by impact of emails, sender will never know if they are going to use up too much space/crash. Will business really invest in private network that can only be kept private by vigilance and inventiveness, or by shutting off Internet.

COMMENTS
No legal remedy other than self-help on personal property that does no damage, but land there is. Why didnt they use nuisance claim. Should internet be parcelized or kept free.

Wednesday 427-456 Self-Help: Has always been and continues to be permitted, can usually use reasonable force to prevent or terminate an unlawful entry or other trespass upon land or a trespass against or the unlawful carrying away of tangible, movable property.

CASE
Berg v. Wiley SC Minnesota (page 428) 1978 Rogosheske

FACTS
Wiley executed lease agreement letting land and building for use as restaurant. 5-year term, tentan would bear all costs of repairs and remodeling, make no changes without prior authorization, and operate restaurant in legal manner, and Wiley can take the property back if they violate the lease. Berg, owner of restaurant, supposedly remodeled restaurant and left it in state of disrepair with health code violations. Got tired of it, sent letter with list of demands or they would retake restaurant, health code also sent things or they would shut down restaurant. On last day of two week period, put up sign that said closed for renovations, but Wiley was snooping around, demanded to be let in police, were called, on Monday with police he locked her out, got new tenant.

PROCEDURE
Defendant appeal from jury verdict awarding plaintiff tenant damages for wrongful eviction from leased premises.

ISSUE
1. Whether evidence was sufficient to support finding that tenant did not abandon or surrender the premises 2. Was Wileys reentry forcible and wrongful as a matter of law.

HELD
Affirm
1. Looking at evidence in favorable light to Berg, jury could reasonably find no surrender. 2. Was not lawful self-help because was not done in peaceable manner, so old common law rule says no. 3. We are also adapting new rule, have to go through judiciary, so he s wrong twice.

ANALYSIS

For first issue, look at evidence to support verdict in light most favorable to Berg, amply supports finding of no abandonment or surrender or premises, could have concluded she did intend to remodel. Second, harder issue, was Wileys self-help prepossession of premises correctly held wrongful as matter of law. Minnesota common law says he can do this provided two conditions are met, (1) landlord is legally entitled to possession (tenant holds over after lease term or where tenant breaches a lease containing a reentry clause, and (2) landlords means of reentry are peaceable. So tenant can get damages if landlord had no right to possession are means were forcible. As for issue number one, didnt take it up, because they found that reentry was forcible as matter of law, so issue number one irrelevant. Usually look with disfavor on any use of self-help to dispossess tenant in circumstances which are likely to result in breaches of peace. Minnesota has enacted various stuatory guideliens to help people get possession back, really discourages self help (3-10 days). In this case, didnt do that, instead picked lock and locked her out. With history of dispute and animosity, only reason no violence occurred was Berg was not there and her own self-restraint. Because of this, cant possible be peaceable, and because general policy is to discourage self help which causes a breach of peace, disapprove of means used to dispossess Berg. If we let this be ok, tenants would be encouraged to actually be there to prove violence would result, bad idea. Other states have gone farther than this, got rid of self-help now that there are peaceful judge ways to do it since removing someone from property is almost never non-violent. So we decide to take it a step further, after this case can only go through judiciary, not self help, have grounds in legislature to do it, and if worried about special circumstances are ways to ensure property doesnt get hurt (restraining orders).

COMMENTS
FED (forcible entry and detainer) statutes are most often in this context. Some courts have held more recently that self-help is still allowed in this context. When self help is still allowed, still has to be peaceable.

CASE
Williams v. Ford Motor Credit Company US COA 8th circuit (page 434) 1982 Benson

FACTS
David Williams, husband of plaintiff, purchases Mustang from Ford Dealer. Although he did everything, title in name of him and wife. Got divorced, granted Cathy title to car, required David to make the payments to FMCC (finance). David defaulted on payments, signed voluntary repossession authorization, Cathy notified and said she was trying to get David to make payments, no agreements. Car got repossessed, Williams said trying to get past due payments up to date, car had personal items that didnt belong to her. Got the items back (president was very nice, no threats), car driven away, called and reported it stolen.

PROCEDURE
Diversity action to recover damages for conversion arising out of alleged wrongful repossession of automobile, Williams appeals form judgment notwithstanding verdict entered for defendant (of $5000 from jury).

ISSUE
1. Whether the repossession of the car was done in a peaceable manner (conversion only where force, or threats of force, or risk of invoking violence happened).

HELD
Affirm 1. She didnt object, so peaceable.

ANALYSIS
Article 9 of UCC (which is now state law) says unless otherwise agreed secured party has on default right to take possession of collateral, can do this without judicial process if there is no breach of peace. In other cases, conversion was found where threats or threats of threats accommodated repossession. Williams argued this in her opinion on appeal, but lower judge said that Williams herself admitted that men were very polite and complied with request, no oppression or violence. In Manhattan Credit v. Brewer (before UCC), court held there was a breach of peace when there was a confrontation and clear object to repossession, because they objected, unlike in other case where they did not give permission and did not object and it was a breach of peace.

The court agrees with lower courts, Williams did not raise an objection to taking and repossession was accomplished without any incident which might tend to provoke violence. And although coming in middle of night wasnt great, legal repossession. DISSENT Heaney: Only issue should be if repossession had came with a risk of invoking violence. Trial jury found that it did, and since determination was reasonable one he dissents. Woken up in middle of night (trying to paint her as victim, single parent), loud noises which woke neighbors, and she did everything she could to stop them short of physical force, confrontation did not result in violence only because she was powerless. Majority finds no reasonable jury could see that these events could lead to confrontation, he doesnt agree. At best, there is a question for the jury so why overturn it. IN fact, if trying to limit self help, opposite directed verdict, now pretty much violence has to result if repossesser is going to stop if they get caught, not the result we want.

COMMENTS
Contrast this case with other, could just have statutes to get rid of self help in personal property, instead dont so in a way encourage it. One argument is its better to allow this because it benefits debtors in general by making credit available at lower costs.

Exceptions to Right to Exclude: Four categories of exception, first necessity

CASE
Ploof v. Putnam SC Vermont (page 439) 1908 Munson

FACTS
Defendant owned island in lake and certain dock attached there, plaintiff was on ship with wife and two children, very violent storm, great danger, so he moored his ship to the dock, defendant (via his servant) untied the ship, and it got smashed against the rocks, contents of ship destroyed and family was injured.

PROCEDURE
Claim set forth in two counts, one of trespass (defendant with force willfully and designedly unmoored ship), other is it was duty to keep ship there, negatively unmoored it.

ISSUE
1. Can you trespass on another persons property in necessity, and is this case an example of that

HELD
Affirm
1. Necessity is complete, trying to save ship and cargo, needed to do it to ber safe

ANALYSIS
Cases that say necessity will justify entries upon land and intererecnes with property that would otherwise be trespass. Cite Miller v. Fandrye, (chasing sheep off land with dog, dog may stray a tad too far, its a dog, so not trespass), also if traveler on highway finds it obstruction, can go on other land to continue and not trespass, entry upon land to save goods which are in danger of being lost or destroyed by water of fire is not trespass. Especially true with human life, sacrifice personal property to save life or lives of fellows (like when he threw coffin overboard to have less weight to save lives during a tempest). Clear you can enter on land, necessity in mooring the sloop, and even though there may have been other natural objects to moor the ship to (defendants argument), averment of necessity is complete.

COMMENTS
FED (forcible entry and detainer) statutes are most often in this context. Some courts have held more recently that self-help is still allowed in this context. When self help is still allowed, still has to be peaceable.

Custom:

CASE
McConico v. Singleton South Carolina COA (page 442) 1818 Johnson

FACTS
Plaintiff proved he had warned and ordered defendant not to hunt on his lands, and defendant kept doing that. Verdict of jury was each party pay own costs, plaintiff wants new trial.

PROCEDURE
See above

ISSUE
1. Is always hunting on unenclosed lands reason it is not trespass.

HELD
Affirm 1. Always have done it, good for hunters and would be civil war if we changed it, allow it

ANALYSIS
Until action was brought, right to hunt on unenclosed and uncultivated lands never been disputed, well known that it has been universally exercised from first settlement of country up to present time. If there was attempted restraint on this, civil war would probably ensue. If usage can make law, none was ever better established. Argues there has to be actual injury to land, surely riding over it with a horse doesnt count. Also makes social policy argument, we need a militia and hunting on open lands is where they learn it. Right which the law gives can not be defeated at the mere will and caprice of an individual.

COMMENTS
A lot of states still have this, or either this or can hunt unless there is some kind of posted sign saying they cant. With vast land that isnt suitable for farming, better social policy to let people hunt?

Public Accommodation Laws: Distinguishes between property not open to public and property offers itself as public accommodation, these owners have much more qualified right to exclude. General nondiscrimination, first come first served basis, charge reasonable rates, come from certain implied duties from common law for common callings (from Blackstone), innkeepers and common carriers have special duty. Started because these groups had monopolies, wouldnt have been fair. Some say no just because it was public, third is Jim Crow era where these groups tried to limit African-Americans. These people had two duties, (1) serve any person who requested service if it was available, (2) charge prices that were reasonable. Public accommodation became known as inn, restaurant, motion picture house.

CASE
Uston v. Resorts International Hotel SC New Nersey (page 448) 1982 Pashman

FACTS
Uston is great teacher and well known for card counting, can almost ensure practice. New commission rule took effect which dramatically improved card counters odds, restricted reshuffling of deck. After this, Resorts wrote Commission and asked about banning card counters, they said no statute or regulation bars you from doing this, so on same day they banned Uston and other counters. Commission upheld this decision, relying on Garifine case, can exclude anyone they choose as long as doesnt violate state and federal civil rights laws.

PROCEDURE
Appellant has excluded Uston from blackjack tables because his strategy increases chances of winning, he concedes card counting helps but no common law or statuary right to exclude him.

ISSUE
1. Does the Casino Control Act allow Resorts to exclude, 2. If it doesnt, what about common law?

HELD
Affirm 1. The Casino Control Act allows only the Commission to exclude, and 2. Even if statute didnt exist, common law is conflicting because public access.

ANALYSIS
We say however that Casino Control Act precludes Resorts from excluding Uston, as commission alone has authority to exclude patrons based on strategy for games. Dont need to

decide if common law supports it, because any common law is destroyed by the act. But we will anyway, if there wasnt a statute common law right to exclude is limited by competing common law right of reasonable access to public places. The statutes on this cover a lot of territory, over 200 separate provisions. Also, Commission has a lot of rules for blackjack, every conceivable aspect of game. No exaggeration to say regulation of blackjack more that most industries, so Commissions control over rules is intended to be comprehensive. If casino owners could decide, would undermine their control, Commission has created rules that give Uston advantage, it has sole authority to change these rules. As for common law right, we will address it, because they are so wrong and they still have some rights to exclude. Is some rules that may suggest disregard for right to reasonable access, but this may be Jim Crow response, not great. In Jersey, decisions have recognized the more private property is devoted to public use, more it must accommodate rights which inhere in individual members of general public that use that property. State v. Schmid, distribute literature on private college campus, balanced individual rights with property rights, didnt promote unreasonable exclusions. Also cite State v. Shack (migrant farmworkers). When property owners open their premises to general public in pursuit of own property interests, have no right to exclude people unreasonably. Actually, they have a duty to not be arbitrary or discriminatory. If they interrupt regular or essential operations or threaten security, that is a different story, not the case here. Uston did not threaten security of casino, did not disrupt function of casino. So unless there is Commission regulation excluding these type of people, free to play. But since we dont know if Commission would adopt this order if they knew he couldnt be excluded, give them 90 days to decide.

COMMENTS
FED (forcible entry and detainer) statutes are most often in this context. Some courts have held more recently that self-help is still allowed in this context. When self help is still allowed, still has to be peaceable.