Lauren Henry: Privacy as "Quasi Property"

For those interested in the intersection of privacy, property theory, and intellectual property rights, Yale ISP Fellow Lauren Henry has a new article forthcoming in the Iowa Law Review in which she argues that privacy can and should be conceptualized as "quasi-property": a relational entitlement to exclude specific actors, a given type of behavior, and/or a given relationship between the actors. The quasi-property model is in contrast to the more complete exclusionary "rights against the world" afforded by, for instance, patents. Here is a quote from the abstract:

[Q]uasi-property provides the essential model for assessing the interest held by a privacy claimant against a defendant, and whether it has been infringed. The quasi-property model can account for the four privacy torts first advanced by William Prosser and adopted as law in the vast majority of states, and liberate them from the ossification that have stunted their development and ability to adapt to modern conditions. What’s more, the approach has implications for developing privacy rules for enforcement by other actors, such as administrative agencies, and even in conceptualizing other areas of privacy law outside of tort law, such as Fourth Amendment jurisprudence.

Henry's project is an explicit response to Pamela Samuelson's rejection of privacy as intellectual property. It reminds me of Mark Lemley's move in arguing that trade secrets should be treated as a form of intellectual property right rather than as subjects of contract and tort claims. But Henry's reliance on the quasi-property model, and her careful application of Shyam Balganesh's recent work revitalizing this paradigm, is more refined in its treatment of property theory. Recommend.

Carol Rose on Surprising Commons

Carol Rose (Univ. of Arizona, and emeritus at Yale Law) has posted a BYU symposium article, Surprising Commons. Here is the abstract:

“Tragedies of the commons” due to overuse and underinvestment have long been known to affect open access resources. Yet decimation of open access commons often catches everyone by surprise. Why the surprise? Among other reasons, overuse may occur in very small increments, or may be an accidental byproduct of seemingly unrelated technology; more generally, a resource’s common status undermines investment in learning about it. Open access to intellectual achievements does not destroy physical resources, but may undermine creative effort — but, in a happy surprise, may instead enhance creativity. An interesting surprise is that the drive to privatize creative achievements has generated a counter-movement to defend open access to these achievements. Scholars following Elinor Ostrom study common resources that are not left in open access but rather limited and managed; here surprises also show a mixture of attractive and unattractive features both in physical and intellectual domains, but they also generate lessons for such modern day developments as crowdsourcing and citizen science.

Rose is the author of the classic article The Comedy of the Commons, published in 1986 in response to Garrett Hardin's 1968 The Tragedy of the Commons.

Interest in common resources has only grown since then; Elinor Ostrom won the 2009 Nobel Prize for her work on commons governance, and Brett Frischmann, Mike Madison, and Kathy Strandburg have extended this line of work with their just-published volume, Governing Knowledge Commons (intro and first chapter here), which is on my reading list.

Mulligan: Numerus Clausus for IP

Should the number of ways to transfer intellectual property rights be limited? Real property may only be held in certain standardized forms (fee simple, lease, etc.), a principle first termed "numerus clausus" ("the number is closed") by Merrill & Smith in a 2000 Yale Law Journal article. "The justifications for the numerus clausus principle in real property law are even stronger in the intellectual property context," argues Christina Mulligan (Yale Law School Information Society Project) in her forthcoming article, A Numerus Clausus Principle for Intellectual Property.

Peter Lee: Accession and Patent Remedies

We often refer to patents as "property," so can traditional property remedies teach us something about appropriate remedies in patent infringement cases? This is what Professor Peter Lee (UC Davis) argues in his forthcoming article, The Accession Insight and Patent Infringement Remedies, which I had the opportunity to hear him discuss last month at Fordham Law. (Full disclosure: I edited Lee's Patent Law and the Two Cultures and am already a fan of his writing style.)

Lee considers the doctrine of accession, which governs the "mistaken improvement" of property. In a canonical accession case, Wetherbee v. Green (Mich. 1871), Wetherbee chopped down $25 worth of trees under a faulty license and made $700 worth of barrel hoops. The Michigan Supreme Court held that as long as Wetherbee was acting in good faith, title to the wood would transfer and he would only need to compensate the true owners for their $25 loss, rather than giving them the $700 barrel hoops.

So what happens, Lee asks, if Wetherbee's fictitious great-great-granddaughter patents a revolutionary new battery and begins commercializing it, only to be sued for infringing a patent covering an older battery design? What if she is unable to negotiate a reasonable licensing agreement?