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Articles 121 - 149 of 149
Full-Text Articles in Law
Notes On Nomenclature - 1985, Wendy J. Gordon
Notes On Nomenclature - 1985, Wendy J. Gordon
Scholarship Chronologically
The ordinary linkage between "property" and "thing" can be seen in the most common name given to the set of intellectual products. They are called "intellectual property."
Outline Of Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
Outline Of Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
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In seeking to understand what lies behind the court's apparent eagerness to grant property in intellectual products, a helpful starting place would seem to be the labour theory of property found in Locke's SECOND TREATIES OF GOVERNMENT. Speaking most generally, the theory suggests that a person who successfully uses his to her efforts to make useful those things which no one else has used or claimed may be rewarded with ownership of the things. The common law has long used a simpler variant of such a principle, awarding ownership to those who take possession of unclaimed physical resources. Creators of …
Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon
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One has no right to complain about another’s appropriation of a plot of land. But we live interdependent lives today. If X were given a property right to pollute, Y might have quite a lot to complain about. If what we are looking for is conditions under which strangers have no right to complain about property being granted, then it would seem appropriate to broaden the proviso a bit and say, the stranger has no right to complain so long as he’s not harmed by the grant of property.
Common Law Analogies - 1985, Wendy J. Gordon
Common Law Analogies - 1985, Wendy J. Gordon
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By the usual principles of claim-staking, casually viewed, the person who describes a new form of i/p seems to possess it. This may be one explanation for the property lure.
Notes On Restitution - 1985, Wendy J. Gordon
Notes On Restitution - 1985, Wendy J. Gordon
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The principle which allows payment for nondamaging uses of property is, I submit, this one: protecting the system of property from eroding. Looking at the leading case in the area, we see precisely that: the user of the property is required to pay for his use, lest he be placed in a better position than a non-trespasser. Any other rule might encourage erosion of property systems.
Notes On New Organization - 1985, Wendy J. Gordon
Notes On New Organization - 1985, Wendy J. Gordon
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No abstract provided.
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.
Notes On Forms Of Discourse - 1985, Wendy J. Gordon
Notes On Forms Of Discourse - 1985, Wendy J. Gordon
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Is there anything which can explain the seeming schizophrenia between the courts favoring creators and users? Part of the explanation may lie in “forms of disclosure”: the cognate areas to which attention is directed. Once in the copyright area, you’re in an area where “policy rather than property” governs, and where limitations on rights are as crucial as the rights themselves.
Outline Of Desert Theory - 1985, Wendy J. Gordon
Outline Of Desert Theory - 1985, Wendy J. Gordon
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Locke suggests that a covetous stranger has no justification to complain of another’s taking possession and ownership of land if, after the owner’s appropriation, “there was as good left, as that already possessed, and more than he [the potential complainer] knew what to do with, or his industry could reach to.”
Outline Of New Organization - 1985, Wendy J. Gordon
Outline Of New Organization - 1985, Wendy J. Gordon
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No abstract provided.
Notes On Value And Property - 1985, Wendy J. Gordon
Notes On Value And Property - 1985, Wendy J. Gordon
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My contention is that “value” should not be the basis for legal protection unless (a) there’s social as well as private value invoked and (b) the legal protection is necessary for the generation of, or protection of, the social value.
Notes On Value - 1985, Wendy J. Gordon
Notes On Value - 1985, Wendy J. Gordon
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The relation between value and property is very much at the core of this paper. First, as a theoretical matter (Holmes; the Ordinary Observer; custom and interactive pattern.) Second, intellectual products have increased greatly in value, shown both by statistics [3] and also by that unfortunate but fairly reliable secondary indicator of a phenomenon’s social importance: the volume of litigation concerning it.
Note On The Three Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon
Note On The Three Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon
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The legal treatment of the sharing-benefits issue runs along the following Hohfeldian continuum.
Workshop Notes On New Property Rights - 1985, Wendy J. Gordon
Workshop Notes On New Property Rights - 1985, Wendy J. Gordon
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There’s a growth-by-accretion of new property rights, largely pushed by an unjust enrichment principles. Such a principle is itself without definable 1imits in an interrelated society. My task: looking at this trend from different vantage pts, other than that of pure desert, is the trend a good one. My view is that by and large it is not, but what we’ll discuss today falls far short of any such broad conclusion.
Note On Singer's The Legal Rights Debate In Analytical Jurisprudence From Betham To Hohfeld - 1984, Wendy J. Gordon
Note On Singer's The Legal Rights Debate In Analytical Jurisprudence From Betham To Hohfeld - 1984, Wendy J. Gordon
Scholarship Chronologically
The economic realm is the area in which these sorts of privileges are most obviously to be found; it is in the economic realm that the evidence of "damnum absque injuria" began to accumulate, leading Homes, Salmond and others to recognize that the legal system did sometimes allow persons to inflict harm on others.
Note On Goetz's Law And Economics: Cases And Materials - 1984, Wendy J. Gordon
Note On Goetz's Law And Economics: Cases And Materials - 1984, Wendy J. Gordon
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No abstract provided.
Note On The House Of Cards: Revisiting Calabresi's Cathedral - 1984, Wendy J. Gordon
Note On The House Of Cards: Revisiting Calabresi's Cathedral - 1984, Wendy J. Gordon
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No one has taught us as much about law and economics as Calabresi, and nowhere so much as in the "Property Rights" article he wrote with Douglas Melamed twenty years ago. While the insights of that piece still retain their clarifying power, it's time for a reassessment. In giving us a newly empowered vocabulary and a mode of analysis, Calabresi and Melamed gave us a somewhat flawed picture of the world.
Outline Of Issues Key: Revised Version - 1984, Wendy J. Gordon
Outline Of Issues Key: Revised Version - 1984, Wendy J. Gordon
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No abstract provided.
Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon
Note On Individualized V Particularized Entitlement Inquiries - 1984, Wendy J. Gordon
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My analysis now looks something like this: Some entitlements should be "prima facie" protectible from invasion. That means that there are some entitlements which the owner should be able to protect even if he or she is unable to prove (a) that protection is in the net social interest or (b) that the invader's action is deserving of punishment. I would call these entitlements "property".
Draft Of Conceptual/Linguistic Analysis - 1984, Wendy J. Gordon
Draft Of Conceptual/Linguistic Analysis - 1984, Wendy J. Gordon
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Conceptually, what I'm interested in here is the extent to which the labels “tort” and “property” have utility. So I am interested in discovering also what these categories mean, how they can be used, and the danger in their misuse.
Note On Caselaw Showing The “Property” Issue - 1984, Wendy J. Gordon
Note On Caselaw Showing The “Property” Issue - 1984, Wendy J. Gordon
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The "misappropriation as property" issue has surfaced in Lanham Act
Note On The Problem Of Flexible Standards - 1983, Wendy J. Gordon
Note On The Problem Of Flexible Standards - 1983, Wendy J. Gordon
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My basic contention is that courts have been giving plaintiffs tort and property rights in intangible without any greater justification than that those persons had “created” the intangible.
Draft Of The Misappropriation Explosion: Thoughts On The Development Of Property Rights - 1983, Wendy J. Gordon
Draft Of The Misappropriation Explosion: Thoughts On The Development Of Property Rights - 1983, Wendy J. Gordon
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The piece on which I am currently working explores courts' growing willingness to create tort and property rights in the intellectual property area, and their insensitivity to any danger of paralysis which a large degree of exclusivity may impose on an interdependent society. The following will summarize the directions the article is taking at this preliminary stage of research and thinking.
Draft Of Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors - 1982, Wendy J. Gordon
Draft Of Fair Use As Market Failure: A Structural And Economic Analysis Of The Betamax Case And Its Predecessors - 1982, Wendy J. Gordon
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In the recent and much publicized Universal City Studios, Inc. v. Sony Corp. of America (Betamax) case, the Court of Appeals for the Ninth Circuit held that persons who make videotapes of copyrighted television programs in the privacy of their homes should be considered to be copyright infringers. Basic to the court's reasoning was a misunderstanding of the "fair use" doctrine. Called "the most troublesome [doctrine] in the whole law of copyright," "fair use" renders noninfringing certain uses of copyrighted material that might technically violate the statute, but which do not violate the statute's basic purposes.
Abstract Of Gift Failure Versus Market Failure - 1982, Wendy J. Gordon
Abstract Of Gift Failure Versus Market Failure - 1982, Wendy J. Gordon
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Gifts and gift exchanges can serve a combination of economic, personal, social, and humanitarian ends. This article explores how intellectual products are unusually capable of serving these ends through gift relations, and suggests ways in which the law can assist in this process.
Notes Re Betamax - 1982, Wendy J. Gordon
Notes Re Betamax - 1982, Wendy J. Gordon
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There's a lot of misunderstanding of by BX article. Some simplifying things: There are three types of "market failure" in copyright. The first inheres in the nonexhaustibil ity of the good; barring a right to post-dissemination control against copying, goods may be underproduced because potential users will refuse to pay for access, figuring they can get access to a friend's copy later for free or at lower cost than the creator would charoe. Thus. relying only o~ the physical control which lets i creato~ charge for the "first look", will (except where the look wont' make copying possible- the trade …
Notes On Preemption And Misc - 1981, Wendy J. Gordon
Notes On Preemption And Misc - 1981, Wendy J. Gordon
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As one of my students indirectly commented (the Herzog midterm?), section 301 PURPORTS to be exclusive. "Nothing in this title shall annul state rights etc." One student, Chris Binnig, indirectly suggested a way out of the exclusivity problem, other than the common sense of Abrams, namely that 301 talks about the general scope of copyright- something which may require some policy inquiry.
Notes On Misc Re Contract - 1981, Wendy J. Gordon
Notes On Misc Re Contract - 1981, Wendy J. Gordon
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Once there is a patent, voluntarily-accepted user restrictions may not be enforceable. Or, at least, an attempt on the patentee's part to condition access of certain types on obtaining such restrictions, may be impossible. See 30 BNA PTCJ 104 (5/30/85)(Restrictions voided on availability of deposited yeast strains.) Filed under Yeast case.
Lecture Draft On Sensory Recall Device - 1980, Wendy J. Gordon
Lecture Draft On Sensory Recall Device - 1980, Wendy J. Gordon
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Perception is a bodily function. The brain “sees” according to the orders which the optic nerve relays from its position at the back of the eye. Similarly, it is the brain which also "hears." As we know from our dreaming and our remembering, neither eye nor ear is indispensable to having the sensations of seeing and hearing.