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Draft Of Desert Theory - 1985, Wendy J. Gordon
Draft Of Desert Theory - 1985, Wendy J. Gordon
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The first condition of Lockean theory is that property applies only to labor which appropriates something out of the common. Similarly, possession theory in American law applies only to appropriations of things which are unclaimed. While an intellectual product might seem to be drawn out of the ether, it can in fact be a difficult question whether its producers have drawn on more than commonly-owned resources.
Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
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At first blush, the creation of i/p seems to meet this test of Locke’s proviso, namely, that strangers cannot complain of the ownership if after the appropriation, “there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.” There would seem to be a nearly infinite store of possible melodies, poems, novels, ideas; granting ownership over one variant which has been reduced to expression by a creator wouldn’t seem to interfere with the stranger’s ability to create his own.
Notes On Demarcation And Other Issues - 1985, Wendy J. Gordon
Notes On Demarcation And Other Issues - 1985, Wendy J. Gordon
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Not only is there a problem with demarking the resource (e.g., the problem of larger and larger generality that Hand tries to deal with) but there's also a problem with demarking the TYPE OF USE. In DOW JONES, for example, the defendant was merely making reference to (not copying)the average; ditto the NFL case.