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period of 20 years minus the duration of the application, under the current Patent Act.
Intellectual property rights represent a different sort of compromise between private and public property. Whereas water rights combine interwoven private and public facets, the various aspects of intellectual goods tend to be either private or public, and if they are private, they are private for only a temporary period of time. Given the sharply dichotomous, either/or structure of various uses of intellectual goods, it is perhaps not surprising that there is fierce dispute over whether the islands of intellectual property are too large or too small relative to the sea of open access in which they reside. Congress’s willingness to adopt repeated extensions of the term of copyrights—and to apply these extensions to existing copyrights—has been a particular source of contention.29 The legislative willingness to expand has given rise to a backlash, which increasingly calls into question the need for exclusion rights given alternative models of cooperative production and distribution.30 Which mix of intellectual property rights, other methods of appropriation, and open access, are appropriate in different industries raises important and unresolved empirical issues.
• Further Reading
Harold Demsetz, Toward a Theory of Property Rights, 57 Am. Econ. Rev. Papers & Proc. 347 (1967) (offering an economic theory of the evolution of property rights).
Margaret Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957 (1982) (stressing the role of property in sustaining individual personhood).
29.See Eldred v. Ashcroft, 537 U.S. 186 (2003) (upholding retroactive extension of copyright term to life plus 70 years).
30.See, e.g., Yochai Benkler, The Wealth of Networks: How Social Production Transforms Markets and Freedom (2006); Lawrence Lessig, The Future of Ideas: The Fate of the Commons in a Connected World (2002).
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Carol Rose, The Comedy of the Commons: Custom, Commerce, and Inherently Public Property, 53 U. Chi. L. Rev. 711 (1986) (examining the importance of and exploring different rationales for inherently public property).
Symposium: The Evolution of Property Rights, 31 J. Legal Stud. S331 et seq. (2002) (papers exploring, extending, and critiquing the Demsetzian perspective on the evolution of property rights).
• four
Owners as Gatekeepers
once an owner has acquired property, either by original acquisition or by transfer from a previous owner, the question becomes what exactly does such an owner have? We can frame the question in terms of the competing visions of property we touched on in Chapter 1. The everyday notion of property, reflected especially in the law of trespass, starts with the right to exclude. This suggests we should think of the owner as a kind of gatekeeper of the thing over which the owner has property. The owner, as gatekeeper, has broad discretion to decide who has access to the property and on what terms, how it will be used, and whether to deputize someone else as a gatekeeper on either a temporary or permanent basis. In this chapter we examine the extent to which the law in fact conforms to this model of owner as gatekeeper.
We find that the law does provide impressive support for the right to exclude, not only through the action for trespass, but also through various criminal and civil laws and the privilege of selfhelp. As we will see, this right to exclude is subject to many exceptions, such as for necessity, custom, public accommodations law, and antidiscrimination law. In addition, owners are subject to governance rules of proper use, to which we return in Chapter 8. Owners also enjoy a variety of powers ancillary to their basic right to exclude, including the power to include (licenses), to transfer temporary custody of property for limited purposes (bailments), to get rid of property (abandonment and destruction), and to transfer property in a variety of ways (sales, gifts, inheritance). Owners get
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not only to keep people out, but also to determine the use or nonuse of resources in a variety of ways.
After considering all these various rights or powers and their many exceptions, one might ask whether there is a theme to this pudding. The bundle of rights metaphor—another basic vision of the nature of property—has been deployed to call into question whether there really is any core content to property. Do we have a single rule or principle with exceptions, or just a collection of disparate and shifting rights and privileges? This is a very basic question with respect to all of law, indeed with respect to all sorts of rulegoverned phenomena. This may sound like a purely theoretical question, with one characterization of the issue or another largely a matter of taste. But the answer we choose has real consequences. With respect to property, the critical question is what presumptive force the core right to exclude should be given when there is some rationale for relaxing or overriding it. When in doubt do we balance considerations of social policy to forge an ad hoc solution, or do we defer to the owner-gatekeeper?
• Laws for Owner Protection
Both real and personal property are protected under both civil and criminal law. This gives us four combinations: criminal laws protecting real property, personal property theft offenses, civil law protections for real property, and the civil law of personal property. Although all four modes of protection backstop the owner’s right to exclude, the specific degree of protection and its rationale differ within each area.
One might think that because land has traditionally been treated as important and special, the criminal law protection of real property would be robust. The law has always had very strong criminal prohibitions of burglary and arson, but these offenses are more about protection of persons than of property. More purely a matter of property is criminal trespass, but, as it turns out, criminal trespass
owners as gatekeepers 67
statutes were introduced only in the nineteenth century and generally carry only modest penalties. Prior to that, it was expected that landowners would avail themselves of self-help, including the use of deadly force, to vindicate their right to exclude. We return to selfhelp and its limits below. Although many of the uses of criminal trespass are uncontroversial, there has always been some tension between the use of the criminal law to protect real property and other areas of law such as labor law or civil rights law.
The conflict between owner sovereignty and other values in the law of criminal trespass is well illustrated by State v. Shack.1 A farmer invoked the law of criminal trespass to exclude two aid workers who wanted to consult unsupervised with migrant farm workers temporarily living on the farmer’s land. The New Jersey Supreme Court, noting that property serves human values, held that the owner’s right to exclude did not go this far—an owner could not use the law of trespass to isolate the workers. The court came down for balancing the right to exclude against the interests of migrant workers in maintaining contact with the outside world. The court also declined to resolve the dispute in terms of existing legal categories. Presumably, the court, if it had so chosen, could have held that the workers were tenants in a landlord-tenant relationship with the farmer and as such had a (perhaps nonwaivable) right to receive guests. Or the court could have read a strong implied term into the employment contract, prohibiting this type of isolation. In other words, State v. Shack raises two issues. One, are the values and interests of others enough to override the basic right to exclude of the owner? And, two, if so, how should this overriding be accomplished? The New Jersey Supreme Court is something of an outlier in this and other cases in that it is inclined to override the right to exclude using a balancing test, and a fairly case-by-case one at that. Most courts tend to stick with traditional categories to a greater degree,
1. 277 A.2d 369 (N.J. 1971).
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for example by looking to landlord-tenant first before tinkering with the basic machinery of criminal trespass.
The criminal law has long protected personal property. Broadly speaking, the offense of larceny originally emphasized the wrongful taking of goods from the owner’s possession (asportation). This was plausibly regarded as reflecting a concern with preventing violence—taking personal property directly from the owner’s possession is very provoking and has a high potential for triggering resistance. As time went on, the offense was gradually expanded to include situations where an owner has been intentionally deprived of property without the owner’s consent, but it is difficult to identify any wrenching-from-possession, as for example when an employee embezzles employer funds. Gradually, asportation has been deemphasized in favor of a focus on intent to convert the good to the wrongdoer’s use.2 In effect, the criminal law of theft offenses has shifted at least partly from an emphasis on preventing violence to protecting the owner’s more general interest in the security of property rights.
The center of attention in a property course is on the civil side. For real property, the most robust protection is afforded by the law of trespass, under which intentional gross invasions (by objects large enough to displace possession) are subject to strict liability. No injury need be shown, and harm is presumed. In another case that sometimes begins the property course, Jacque v. Steenberg Homes, Inc.,3 a company delivered a mobile home to the plaintiffs’ neighbor across the plaintiffs’ snowy field, over their explicit and vociferous objection, instead of using a private road with a dangerous snow-clogged hairpin turn. The trespass could not have been more deliberate, and there was evidence of scoffing at the Jacques on the part of the company foreman. The jury found one dollar in
2.See George P. Fletcher, The Metamorphosis of Larceny, 89 Harv. L. Rev. 469 (1976).
3.563 N.W.2d 154 (Wis. 1997).
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nominal damages and $100,000 in punitive damages. This is a dramatic result, and the court (like the trial jury presumably) was outraged by the company’s lack of respect for the Jacques’ rights, and believed that the $30 fine for criminal trespass would not deter the defendant from engaging in similar conduct in the future. Like an injunction but more so, the punitive damages send a message to get the attention of the defendant (and those in a similar position). The court saw the right to exclude, backed up by trespass, as important and worthy of protection—enough so that it held that the usual rule that nominal damages will not support an award of punitive damages does not apply to trespass to land.
But why? The Jacques may have been a little eccentric and, evidently smarting from being on the losing end of adverse possession in the past, were very insistent on their rights. But as we saw in Chapter 2, adverse possession (or, as we will see in Chapter 8, prescription) would require nonpermissive use over a twenty-year period (in Wisconsin). Simple permission from the owner would defeat any such claim. But most observers feel there is more to the story than the stated objections of the Jacques. Certainly their autonomy was violated. But would it have been if they had known beforehand that their bundle of rights did not include the right to prohibit dragging a mobile home across the snowy field? (Query: Where would such specific determinations come from—courts or legislatures?) Or maybe the problem is that the whole point of private property is to delegate to the owner, here the Jacques, decisionmaking authority (the gatekeeper right) without the need to justify their decisions, and Steenberg Homes had simply offered no good reason to revisit that determination, instead bypassing the system altogether in bad faith. Whether $100,000 is the right amount of punitive damages is another question, upon which the U.S. Supreme Court has made periodic pronouncements,4 but the availability of a
4.See, e.g., Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 429 (2003); BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575 (1996).
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deterrent even where a plaintiff cannot prove harm protects the basic delegation of gatekeeping authority to the owners.
Injunctions traditionally were not available in trespass actions, but the exceptions to this rule, for repeated and threatened trespass for example, eventually wound up almost swallowing the rule. Otherwise damages are the remedy in trespass. Other actions for the protection of real property tend to trace back historically to the trespass family. Ejectment is the action to remove another who is in wrongful possession; as we saw in Chapter 2, the statute of limitations for ejectment is generally the measure of adverse possession. Nuisance, to which we return in Chapter 8, protects against more ethereal invasions.
Owners of personal property who have lost possession can sue in replevin to get the thing back or can sue in conversion (sometimes called trover) to get damages. In the latter situation the owner is in effect forcing a sale on the converter. There is also an action in trespass—trespass to chattels—that protects personal property against damage. Unlike trespass to real property, harm must be proven, and this requirement (for jurisdictions in which it is a requirement) has given rise to controversies in the context of computer systems. The most high-profile case to date enforced a harm requirement in the context of an invasion of an intranet system by unwanted e-mails.5 Although spammers and senders of unwanted e-mails may be liable for trespass to chattels if the volume of e-mail harms or slows down the plaintiff ’s system, the California Supreme Court held that other harms such as disruption to the workplace do not give rise to trespass liability. Cyberscholars generally applaud this result because in their view it promotes the openness of the Internet, whereas some others have advocated a more robust right to exclude along the lines of trespass to land. One interesting twist is that courts and most commentators seem to agree that owners of computer systems can engage in self-help: Intruders cannot complain if the owner takes defensive measures such as installing
5. Intel Corp. v. Hamidi, 71 P.3d 296 (Cal. 2003).