Careful With Those Analogies:

A commenter on the Madison / IP thread uses the intellectual property/tangible property analogy to argue for injunctions against infringement of intellectual property (apparently including infringement that doesn't interfere with the owner's use of the property), and goes on to say (in response to another commenter's argument),

[T]he analogy to trespass does not require an actual dimunition of your own use. It's 1L property law that a trespass is actionable even if nothing is broken, if you're not home, if your use of the property is not denied in any way. The offense is crossing the property line.

Now, the amount, impact, and circumstances of the trespass relate to damages, but liability starts from crossing the property line. There's not, nor has there been, a requirement that the property owner's actual use be diminished for there to be a trespass, as opposed to, say, conversion.

I can't say with confidence when injunctions should or should not be available in intellectual property cases; here, I just want to alert people to a common problem with analogies -- the simple problem that the analogized-to body of law is often more complex than the analogizer suggests.

For instance, let's assume that intellectual property is analogous in important ways to tangible property. There are (at least) two important classes of tangible property: real estate and personal property (also known as chattels, and generally just referring to all tangible property that is not real estate).

The "1L property law" rule to which the commenter refers is a rule applicable to real estate. But the rule for tangible property is different: As Restatement (Second) of Torts § 218 puts it,

The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

See also Intel Corp. v. Hamidi, 71 P.3d 296, 302 (Cal. Supreme Ct. 2003).

Now maybe the rule as to personal property is wrong. Or maybe intellectual property is more analogous to real estate than to personal property. Or maybe many (most? all? some?) infringements of intellectual property are like those infringements of personal property rights that do warrant an injunction. Or maybe the analogies aren't really helpful here, and we should support injunctions against infringements of intellectual property for other reasons.

But the one thing that should be clear is that, even to the extent the intellectual property / tangible property analogy is sound (and it certainly is an analogy that's long been recognized in many respects by the law), we have to recognize that the analogized-to category is not legally homogeneous. Before we apply by analogy "1L property law" rules relevant to one class of tangible property, we should acknowledge that there are other rules relevant to another class of tangible property, and explain why we are choosing one sort of rule and not the other.

A fair point, as I would probably view IP as more analogous to chattel than land (as I believe OTHER classes of non-physical property were historically regarded).

But it's also important to note, in light of the "physical condition, quality, or value" issue, that indeed the "value" of IP is bound up in the notion of exclusivity of control. (I don't think I'm being circular; I believe courts have looked to the nature of various chattels for purposes of this inquiry.) Hence, any dilution of such exclusivity would diminish the "value" of the chattel, no?
6.12.2007 1:56pm
Stephen C. Carlson (www):
According to 35 U.S.C. § 301, "Subject to the provisions of this title, patents shall have the attributes of personal property."
6.12.2007 2:52pm
Stephen C. Carlson (www):
Sorry that's § 261.
6.12.2007 2:53pm
PatHMV (mail) (www):
I would add that even the protection of real estate property is not absolute. Let the squatters stay on your property long enough, and they acquire ownership of it without owing you a dime. I'm just a Louisiana lawyer, so I don't know the specific rules in common-law-land, but in Louisiana, adverse possessors gain title to the property after a mere 30 years. That's a much shorter time than it takes for copyrighted materials to fall into the public domain.

Interestingly, we treat trademark IP in a way that's a bit more analogous to real property. It's a perpetual property right, but if you don't enforce it, you lose it. Copyright, however, does not lapse even if you openly tolerate wide-spread copying. You can seek to enforce it at any time you like, ignoring 100 violations and prosecuting the 101st.
6.12.2007 3:28pm

I actually do think that is a bit circular. What does it mean to have "exclusive control" of an idea, as opposed to an object? I don't think there is a natural meaning to that concept. Indeed, I don't think it would be possible to enforce--at least once you tell me an idea, could you really ever re-establish "exclusive control" over that idea, no matter what the law required?

If we then turn to defining this notion of "exclusive control" in terms of whatever would preserve the "value" of the "intellectual property" in question, then we fall into what I learned in my 1L year, which is that it is notoriously difficult to define the value of property prior to defining the rights associated with the property.

So, I think this just comes down to a policy decision: if you want to increase the value of "intellectual property", you beef up what sorts of competitive activities the state will prohibit, and vice-versa. But looking for an answer to this question through analogies probably won't help us much.
6.12.2007 3:35pm

Interesting...but it seems that that problem is essentially solved by defining what the scope of the "propety" is up-front, which could be an a priori (conceivably moral; not necessarily utilitarian) exercise. That is, the "property" is (or, arguably, once was) defined in the natural/common law to be not a novel, play, sculpture, etc. -- but rather the right to do X, Y, or Z with it.
6.12.2007 3:46pm
Adam Mossoff (mail):
But isn't coversion the proper personal property analog to trespass of real property? As Prosser &Keeton on Torts famously notes, the "trespass to chattels" doctrine is really just "the little brother of conversion."

Significantly, one doesn't need to prove actual damages in successfully pleading conversion, just as with trespass. Rather, winning on a conversion claim requires only that the defendant interfered with the plaintiff's exclusive possession of his personal property (without first receiving consent from the plaintiff).
6.12.2007 4:13pm
Justin (mail):
This is off topic, and I'd do it myself but I prefer not to disclose my email to the VC, but can someone email one of the gun specialists (preferrably EV or DK) and see if they have any interesting thoughts about the Government's argument in the Hamdan trial that Hamdan should be found an "unlawful combatant" because he possessed a weapon?

There seems to be interesting questions of international law (DK), "soft" constitutional theory (EV), and policy (both) here. I'd be interested in hearing their views.
6.12.2007 5:07pm

Well, there may be a moral argument (as opposed to a public policy argument, which could be utilitarian), but that is a big part of what people are disagreeing about.

I am pretty confident that what will not work, however, is basing the moral argument for IP on any natural right to do X with an idea, because again my doing X with the same idea does not stop you from doing X with that idea. It may stop you from making as much money doing X if I am also doing X, but that gets us back to the circular valuation problem.
6.12.2007 5:39pm
GMUSL 3L (mail):
Prof. Volokh,

As the offending commentator, I think I indicated that I could do no better than the masterful explanation put forth in Prof. Mossoff's cert. petition in Zoltek (which I linked to), though I could have been a bit more explicit about why I was making the assertion.

In addition to the arguments in that brief, I also (though again, probably subsequently) noted the common use of "blazemarks" or "blaze marks" in the context of genus/subgenus/species claims. The cases discussing blazemarks explicitly reference the real property practice of using blazemarks to indicate the boundary claimed in real property. In patent law, "blazemarks" in the specification specifying a particular subgenus or subset are sometimes (mostly in the "unpredictable arts") necessary in order to provide a written description for that claim as required by 35 USC 112. I also mentioned that Chisum had a nice discussion of the history of blazemarks and the analogies to real property law. Having graduated recently, I'm reluctant to charge my employer or cut-and-paste a large section of Chisum.

I had to write a memo on a subset of the blazemarks issue for work in the context of a specific application, but some of the cases are: University of Rochester v. G.D. Searle &Co., 358 F.3d 916 (Fed. Cir. 2004), Kolmes v. World Fibers Corp., 107 F.3d 1534 (Fed. Cir. 1997), In re Wertheim, 541 F.2d 257 (C.C.P.A. 1976).

It's also a well-founded (and over a century-old) trend in patent law to frequently analogize the claims of a patent to the metes and bounds of real property. A search of the patent law database on lexis or westlaw will reveal just how basic that analogy is to patent law.

But Prof. Mossoff's brief really is by far the best resource for this, along with his recent article on 19th century patent law. It's an incredibly impressive chunk of research and writing.
6.12.2007 7:02pm
GMUSL 3L (mail):
Also, I should emphasize that I'm referring more specifically to "examined" IP {patents, tm} rather than the much more difficult case of "automatic" IP, i.e., (c).
6.12.2007 7:03pm