LEGL Test #3

tangible personal property

"chattels" under common law, now cars, phones, cash, etc

Ghen v. Rich

(First Possession) Man kills a whale and follows tradition in allowing it to wash up onto the beach. The man who finds it sells it instead of contacting the town so the owner could go get the whale. • Because of the nature of whale hunting, the one who shot the whale possessed it, not the one who found the whale after. Look to CUSTOM • When all reasonable and practicable actions have been taken to secure a wild animal, the animal belongs to the securer • Defense used was case law that said the one who finds something posses it. RULE: When someone does all that is possible to secure control over a wild animal, within the recognized custom it becomes property of the securer. - judge said to split it - each of the men did something valuable

Skilling v. United States

(Info: Skilling falsely led the public to believe that his company's stock price remained high, when it didn't and he resigned and filed for bankruptcy shortly after.) Issue: Whether or not Skilling violated the honest services statute. Rule: The Law was written to convict people for giving and receiving kickbacks and bribes when a fiduciary responsibility is in place. Analysis: Skilling didn't violate the honest services statute because he never received kickbacks or bribes for his services. Conclusion: The case was remanded for further proceedings to determine how its decision would affect the other charges against Skilling. - the supreme court rejected Skilling's claim that he did not receive a fair trial because he did not establish that a presumption of juror prejudice against him arose or that any actual bias infected the jury in the case - the court did, however, find in Skilling's favor on the issue of honest services. 18 U.S.C. covers only bribery and kickback schemes and does not extend to honest services - skilling served 12 years in prison

T-Mobile USA v. Huawei (2014) (Trade Secrets)

- "Tappy" the T-Mobile test robot Huawei makes phones and T-Mobile wants them to use their plans - They were working together and T-Mobile created Tappy, a robot that was created to feel like a human finger on a phone screen - Very valuable innovation - Huawei asked T-Mobile for a tappy of their own and T-Mobile said no - One Huawei employee keeps hanging around Tappy - T-Mobile sues after the finger goes missing and gets discovery and sees all of Huawei's emails - Huawei ends up settling for millions of dollars for violating the Trade secrets act - Later was charged for criminal acts under the trump administration and Huawei has no connection to the US today

security agreement

- "attaches" some collateral to the note - document that matches an agreement to the note - ex: buying a car with a loan, you're allowed to keep the collateral (the car) but there is a piece of paper that says they can take the car if not paid back - private contract

tangible property

- "real" property - land and attachments - personal property

grand jury

- 17-23 jurors - Prove probable cause - Defendant cannot defend themself - They may not even know - Confidential process - Must issue an inditement - Does not prove guilt, but lets them go to trial - Asks a buffer for cases that have no evidence "no bill"

aqua advantage salmon

- 2 types of salmon plus an eel - fast growth - first animal GMO with FDA approval for human consumption

Helmberg v. Alpha Tau Omega of Huntington, WV

- ATO bottle rocket - Frat guy wants to shoot a bottle rocket out of his butt - Baseball player was there and falls off of the porch because of the bottle rocket explosion and gets hurt because he falls in between the porch and air conditioning unit - Baseball player sues - Didn't go to a jury, they settle

Arianna Grande v. Forever 21

- Ad campaign used pictures from - Arianna's 7 ring video - Took down the pictures after cease and desists - Re posted the campaign with their own actor, but same pictures - Still used her lyrics - Ended up settling

Trump v porn star(StormyDaniels)

- Court dismissed lawsuit, said - Trump's statement calling her a liar was a "rhetorical hyperbole" - Granted anti-SLAPP motion, around $300K in fees Her and trump hooked up in a hotel room while trump was married, and Trump tried to scare her off and pay her off to keep her mouth shut. Her and her lawyer released the sketch, and trump called her a liar. She sued for defamation. Court said it was a matter of public importance and that it was not a statement of fact. He is engaging in rhetorical hyperbole, just saying he doesn't believe her. Trump's attorney filed an anti-SLAPP motion, and Daniels had to pay $300,000 in attorney fees for Trump.

false claims

- Defrauding the government Ex: pandemic relief funds Ex: Martha Stewart

white collar crime

- Denotes non-violent, business crimes - Poorly defined, leads to criticisms - Unreasonable sentencing disparities - Socioeconomic discrimination - Some cases blur the line - Is an unjustified killing by a police officer "white collar"? - Is a Mafia racketeering prosecution "white collar"? - Bribery / FCPA - Extortion / blackmail - Money laundering - Embezzlement - Obstruction of justice - Conspiracy - Racketeering - Fraud

Ehling v. Monmouth-Ocean Hospital

- Ehling had a facebook page with fellow workers but no employers/bosses - Ehling posts about a shooting and judges the medical care, which she cannot do - her coworkers show post to hospital which turns her in and she looses her license - not invasion fo privacy; anyone can see her profile (how much expectation of privacy do you have?) Murderer shot but paramedics saved him Lady posts that they should have let him die She gets fired and sues for invasion of privacy Not invasion of privacy since it was posted

Bob and Rina Thomas v Elcon foods

- Elberton, GA - They owned a small store next to this hotel - City tried to take their property to make a pedestrian walkway to rooms in the hotel - They argued there were plenty of other options for entrance to the hotel - Argued it was a pretense - Bob and Rina won the case

Lindsay Lohan Grand Theft Auto Case

- Game avatar named differently but looked like Lohan - No real case

perfection

- Gives a creditor "priority" in the collateral - Ex: a person gets loans from 5 different banks and defaults on all the loans, so each bank wants the collateral and it is not worth enough to split evenly - Files a perfection to prevent this - Some way to put rest of the world on notice - Most common is filing a "financing statement" - Filed at Superior court, but now stored on internet

consequences of a felony

- Grand jury process - Can trigger other violations Ex: can't have a firearm on you when committing a crime, regardless if it was used - Enhances penalties

securities fraud

- Insider trading - Ex: Elon musk tweeting that Tesla stock was about to go up by a lot so a ton of people bought tesla stock, but then said he was lying - Fined millions of dollars and no longer allowed to tweet

Aquazzura v. Trump

- Ivanka trump designed shoes just like Aquazzura's design - Trademark case - Design patent - Million dollar company, worth getting a patent - Trade dress - The way a store or product looks could be trademark - Customer confusion? Likely not - Brand dilution - Too many people are going to start wearing the design and it will diminish the unique specialty of the brand - Can only claim this if they are a "famous brand" - "blurring" - Blurring the distinction between an aquazzura shoe and a trump shoe - "tarnishment" - Not only are you devaluing the brand, but you are associating it with something that is negative - Ex: if trump's shoe falls apart easily, cheaply made - Makes people not want to buy an aquazzura shoe because they saw a fake one fall apart - Trump in her release claimed she designed the shoes herself so aquazzura sued her - Settled for some $$

Louboutin v. Yves St. Laurent

- Louboutin tried suing st laurent for red bottom shoes - Not tarnishment - Judge said st laurent was in the clear because it was not a contrasting color on the shoe - The contrast makes the shoes unique - St laurent shoes were all red

obstruction of justice

- Lying to the cops - Doing anything to impede an investigation

natural gas fracking problems

- No way to respect property lines - Leaves chemicals and waste behind on someone else's property - Hard to sue because it is hard to prove

Pharrell and Robin Thicke v Marvin Gaye

- Parrell and Thicke stole part of Gaye's song - took it to trail - Pharrell and Thicke lost

harm

- Physical injury, lost work, pain and suffering, etc. - Has to be severe negligence

Torts

- Private harm (victim) - Protect a specific person - Victim sues or hires lawyer - Compensation - Purpose - Not about punishment - $$$, injunction - Injunction = ex: person has property over your property line, makes them move their property - BOP - preponderance of evidence - Intent not required - Silence can be seen as guilt

crimes

- Public harm (society) - Protect the public as a whole - Government lawyer (prosecutor) - Punishment / deterrence - Jail, fines, execution - BOP - beyond reasonable doubt - Intent often required - Victim does not control the prosecution, the government can decide - Ex: domestic violence cases can be taken to trial even if the victim doesn't want it to - Silence cannot be inferred as guilt

what rights can you have in property?

- Right to exclude others - Right to charge for access/ use - Right to use it - Right to pledge as security

Briggs v. Southwestern Energy

- Rule of capture applies to fracking - When you take natural gas out of the ground and accidentally take some of your neighbors gas, you don't have to compensate them - If you get chemicals in their property, it has to be proved, which is difficult to do

Kim Kardashian v. Old Navy

- Settled for undisclosed amount - Used model that looked like Kim K - Precedent from Vanna White's case

boggs v meredith

- Trial of Willie Meridith, aka "drone slayer" - David flew a drone over Willie's house and willie shot it - Willie got arrested - Willie is concerned about his real property rights - David is concerned about his personal property rights - Roman common law said property rights go all the way up and all the way down - This changed when airplanes became popular - Called an easement: above a certain point, it is a public easement - At least 500 feet (by statute can't own more than that) - Small court judge said Willie had the right and the case never got appealed - Bullit county, KY

At dragonCon, Marriot Marquis Atlanta

- Volpin Props gets C&D from courtisan carpet - Volpin props got sued for looking like the carpet in the marriot - Courtisan carpet wanted to sue - Got a cease and desist for selling the pattern online - Never got sued because they backed off after the cease and desist

Penn Central Transportation Co. v. City of New York

- Wanted to build on top of grand central station - Government said no because it is a historical building - Company sued and lost

Purpose and character of use

- Why are you stealing it? - Helpful: nonprofit, educational, political or social commentary - How transformative is it? (presented in a different way) - Special part of the fair use act for public and nonprofit university is automatically protected

how do you acquire property?

- accession - buy it - inheritance - trade - gift - law of "finds" - establish a trust

Kraft Foods Group Brands LLC v. Cracker Barrel Old Country Store, Inc.

- both Kraft and Cracker Barrel restaurants have legitimate trademarks. their use in the same location is what creates the problem - even though Kraft and Cracker Barrel may not use identical marks on identical products, a likelihood of confusion can still exist - the court suggests that sophisticated consumers for luxury products would look more closely at labels Trademarks, preliminary injunction Kraft didn't want cracker Barrell selling their products in stores with Kraft Preliminary injunction Asked the judge to prevent cracker Barrell from selling in stores throughout the lawsuit because kraft was most likely to win

What rights does property law convey?

- build on it - exclusive possession - sell it - grow things (crops and animals) - easements - lease/ rent - run a business - privacy - offer as collateral

how do you obtain property rights?

- by purchase - by finding - by gift - growing / extracting from real property - by accession - by confusion - by labor

conditional gift (condition is ?)

- fault-based return policy - may seem like fairest option - like a "deposit" made by giver - enforcement can be difficult, messy - ex: Tom Brady and last touchdown pass football

types of land ownership

- fee simple - life estate, leasehold estate - concurrent ownership - easements

effect of use upon the potential market

- genre - could argue they aren't taking any money from them

PTO denies registration with:

- if the mark is the same or similar to a mark on related goods - if the mark contains certain prohibited or reserved names or designs (US flag, government symbols, etc) - if the mark merely describes a product or service - if the mark is generic and represents a product or service

intangible personal property

- poorly defined, especially with technology advances, bitcoin, stocks - more common designation is personal property vs intellectual property

security interests

- promissory note - security agreement - perfection - ex: mortgage on a home

gift

- recipient always keeps - easy to enforce - giver may be less willing to spend money - could lead to unfair results

conditional gift (condition is marriage)

- recipient must return - easy to enforce - what if ring is lost/ damages? creates bailment?

types of property

- tangible property - intangible property - intellectual property

concurrent ownership

- tenancy in common - joint tenancy (right of survivorship) - "four unities" - time, title, interest, possession

Sixth Amendment Rights

- to a speedy and public trial - to a trial by jury - to be informed of the charge against you - to confront your accuser - to subpoena witnesses in your favor - to have the assistance of an attorney

intellectual property

- trade secrets - patents - trademarks - copyrights

Vanilla Ice v. David Bowie/Queen (1990)

-David Bowie/ Queen sued Vanilla Ice for using part of their song "Under Pressure" in his song "Ice Ice Baby" -case settled out of court for undisclosed amount

Ghen v. Rich (1888)

-Finback whales sink once killed so they use a type of harpoon bazooka to kill it -couple days later they wash up and someone finds it and sells it and gets sued -tradition is whale belongs to person who shot it, but finder gets finder's fee -caused companies to put their logo on their harpoons

Iannelli v. Burger King Corp.

-The Iannelli family went to eat at burger king where there was a group of obnoxious, swearing teenagers. The father asked them to stop and the teens beat him. -Argued that a commercial enterprise (restaurant) has a duty to exercise reasonable care towards its patrons. -A restaurant does have a duty of reasonable care to those who are eating in the restaurant, but protecting them from assault does not normally fall within the duty owed to diners at a restaurant. -When warning signs indicate that individuals eating in the restaurant may not be safe, the manager of the restaurant has a duty to take action to try to prevent injury. Warning signs in this case included obnoxious behavior by teenagers and one of them almost bumping into a child yet expressing indifference to the encounter. -The court found that a duty to protect diners from assault might exist if restaurant employees become aware of the danger and do not take basic measures to prevent it. - Burger King lost, the behavior in the restaurant created a foreseeable risk of harm that the defendant unreasonably failed to alleviate Drunk kids fought dad Dad sues burger king Dad wins because burger king had negligence

"harvard mouse"

-first US patent for transgenic animal -used to study cancer - means it contains genes they could never have in nature

how a utility patent works

1) explain how to make and use the basic invention 2) show why the invention is different from prior art 3) precisely detail the subject matter that the inventor regards as the invention (called claims)

3 categories of bailments

1) for the sole benefit of the bailor - watching someone's pet while they are on vacation 2) for the sole benefit of the bailee - loaning your lawn mower 3) for the mutual benefit of both parties - rentals

3 questions of eminent domain

1) is there a taking? 2) is it for public use? 3) is there just compensation?

how many years of protection apply for "design" patents?

15 years of protection - ex: coke bottle design - ex: Abraham Lincoln buoyant boat ("a new and improved manner of combining adjustable buoyant air chambers with a steam boat...")

how many years of protection apply for "utility" patents?

20 years

buyer in the ordinary course of business

A buyer who, in good faith and without knowledge that the sale violates the ownership rights or security interest of a third party in the goods, purchases goods in the ordinary course of business from a person in the business of selling goods of that kind.

Assumption of Risk

A defense against negligence that can be used when the plaintiff was aware of a danger and voluntarily assumed the risk of injury from that danger. - Ex: standing in a bull ring in Spain even if you didn't know bulls would come running out, you assume the risk

fraud

A deliberate deception intended to secure an unfair or unlawful gain

Economic Espionage Act (EEA)

A federal statute that makes it a crime for any person to convert a trade secret for his or her own or another's benefit, knowing or intending to cause injury to the owners of the trade secret.

Joint Tenancy

A form of concurrent ownership, which occurs when two or more persons own a single estate in land, with right of survivorship. Must have equal shares, right to partition.

Private Nuisance

A nuisance that affects only a single individual or a very limited number of individuals. ex: people in a city put up with extra smoke and light pollution, but may be considering a nuisance if it was in a rural or residential location

Bailee

A person who receives personal property from another as a bailment.

nolo contendere (no contest)

A pleading of no contest by a defendant; a plea in a criminal action not admitting guilt but subjecting the defendant to punishment as though it were a guilty plea.

Artisan's Lien

A possessory lien given to a person who has made improvements and added value to another person's personal property as security for payment for services performed. - the lien only has priority as long as the creditor keeps possession of the collateral

Purchase Money Security Interest (PMSI)

A security interest that arises when a seller or lender extends credit for part or all of the purchase price of goods purchased by a buyer.

Dram Shop Acts

A state statute that imposes liability on the owners of bars and taverns, as well as those who serve alcoholic drinks to the public, for injuries resulting from accidents caused by intoxicated persons when the sellers or servers of alcoholic drinks contributed to the intoxication.

Mechanic's Lien

A statutory lien on the real property of another, created to ensure payment for work performed and materials furnished in the repair or improvement of real property, such as a building.

Malicious Prosecution

A tort in which one person wrongfully subjects another to criminal or civil litigation for the sole purpose of causing problems for that other person, often in retaliation for previous litigation between the two. - aka false arrest

Al Minor & Associates, Inc. v. Martin

AMA is an actuarial firm that designs and administers retirement plans . An analyst, Martin, opened up a similar firm and managed through memorization to solicit 15 AMA clients - client list can be a trade secret bc it provides value to the owner - info that was memorized and not written down can be subject to trade secret protection - not all info used within a company is a trade secret Trade secrets Guy worked for this company without any non-competition agreement He left and started his own business and called clients from previous company Had customer list memorized Customer list was a trade secret Court agreed Martin lost

Nuisance per se

Act, occupations or structures which are nuisances at all times and under all circumstances. It may be prejudicial to public morals, dangerous to life, or injurious to public rights.

"negligence per se"

An action or failure to act in violation of a statutory requirement.

Easement by Prescription

An easement acquired by continuous, open, and hostile use of the property for the period of time prescribed by state law. - in GA, 7 or 20 years, continuous, adverse, notorious - ex: using your neighbor's driveway continuously for 7 years - 20 years for adverse possession (building property on their original property)

Public Nuisance

An owner's use of land that causes damage or inconvenience to the general public. - ex: discharging industrial waste from one's land that kills the fish in a river

Rylands v Fletcher (1868)

Brought about Strict Liability in Tort: -Defendant built Reservoir which broke into shaft of abandoned coal mine then flooding the plaintiff's active mine, defendant did not know of mine but was still liable

Tenancy in Common

Co-ownership of property in which each party owns an undivided interest that passes to his or her heirs at death. - does not have the right of survivorship

Harper v. Winston County

Employee Sherry Harper was fired from her job, then sued her job claiming that her boss Wright had committed an assault and battery in grabbing her and jerking her arm in trying to force her to go into Wright's office. Before the trial, the court granted summary judgement in favor of Wright, the plaintiff, Harper, appealed, and the case reached the Alabama Supreme Court. The plaintiff in an action assault and battery must prove 1.) that the defendant touched the plaintiff: 2.) that the defendant intended to touch the plaintiff; and 3.) that the touching was conducted in a harmful or offensive manner. The plaintiff was able to prover that Wright had touched her in inappropriate and unwanted manner, and that there didn't need to be physical injury for an assault and battery charge to take place. The court reversed the summary judgement in favor of Wright and remanded the case to the trial court for proceedings consistent with this opinion. - Harper was not physically injured, but can still claim battery if she was touched in an offensive or hostile way (grabbed or pulled) Lower court said you can't sue for battery Higher court said you can Just has to be an offensive touching

Law of Finders

Finder of lost/mislaid property holds and is in rightful possession of the property until the rightful owner comes forward

Hackbart v. Cincinnati Bengals

Football player Hackbart sued Cincinnati Bengals after getting injured in a football game. Normally, lawsuits like this wouldn't prevail because defendants claim that playing football comes with an assumed risk. This is the point that Judge Matsche argued. However, Hackbarts case went to a court of appeals on the premise that his opponent was using reckless misconduct. Case was settled for $200,000.

Duke Energy Carolinas v. Gray

Gray's new house was inadvertently built on Duke Energy's power line easement from 50 yrs earlier - an easement is entitled to the same legal respect as other forms of real property - one may acquire another's real property by claiming the property and occupying it (adversely possessing) for a long period of time so long as the original owner does not take action to evict -the time period required to acquire ownership in real property through adverse possession is typically much longer than the time period to be free of liability in a trespass case Adverse possession Built his house on part of Carolina's easement and they said he needs to move his house Court said to stay, he would have to have the property by adverse possession, but it had only been 6 years when the company told him to move Not long enough to grant adverse possession

Contributory Negligence

If >0% at fault, plaintiff gets $0

Scope of Consent

If D exceed the scope, then he goes back into a position of liability. Example: If P invites friend over to watch the football game, but D goes up into the attic. D only had permission to be in the family room.

endangerment of workers

If a worker is injured, or even accidental homicide if a worker is killed on the job

Berman v. Parker

In 1945, Congress passed the District of Columbia Redevelopment Act, creating the District of Columbia Redevelopment Land Agency, whose purpose would be to identify and redevelop blighted areas of Washington, D.C. Congress gave the new agency the power of eminent domain - the ability to seize private property with just compensation. Berman and the other appellants owned a department store in one blighted area targeted by the commission and objected to the seizing of their property solely for beautification of the area. The landowners brought a civil suit in federal district court challenging the constitutionality of the Act. Their case was dismissed. They then appealed directly to the U.S. Supreme Court. The Court voted 8-0 to hold that private property could be taken for a public purpose with just compensation

Product Defects

Manufacturing defects, design defects, and inadequate warnings. - products are not manufactured to a manufacturer's own standards - ex: defective brakes on a new car

Swift v. Gifford

Massachusetts sperm whaling case; "first iron holds the whale"-- changed the precedent of Pierson v. Post - Long process to tire the whale out - 2 boats - Swift is on his boat and throws harpoons onto the whale and start fighting the whale for a while - Gifford sees the whale and throws his own harpoons onto it - The second boat on the scene kills and takes the whale even though the first boat was there first - Judge called in whalers - Industry custom - Everyone backs off if one person has a harpoon in it - Judge gives the whale to the first boat

What brand is notorious for brand lawsuits?

McDonald's - very successful in courts

Do privately owned gas companies need government permission to build their pipes?

No

unreasonable searches and seizures

Obtaining evidence in a haphazard or random manner, a practice prohibited by the Fourth Amendment. Probable cause and/or a search warrant are required for a legal and proper search for and seizure of incriminating evidence.

Ownership by Confusion

Occurs when fungible goods are commingled. - determining the rightful owner is nearly impossible. - Confusion allows one property owner to acquire title to someone elses property because of their intertwined belongings-and vice versa

Subsurface Rights

Ownership rights in a parcel of real estate to the water, minerals, gas, oil, and so forth that lie beneath the surface of the property. - relevant because of "rare earth" minerals

Popou v Hayashi

Popov has a pre possessory right to ball even though Mr. Hayashi ended up with the actual item. This means that both men had a right to the ball, and neither claim was stronger than the other. Therefore, the court ruled that the ball be sold and the proceeds divided between the men. - one must retain control of the ball after an initial contact to obtain possession of it

Eminent Domain (5th Amendment)

Power of a government to take private property for public use. - "nor shall private property be taken for public use, without just compensation"

Uniform Trade Secrets Act

Protects employers from having former employees take trade secrets to new employer - gives trade secrets statute protection - 20 states use this - Georgia is not one of them, but has a similar one - makes it a criminal violation to expose secrets

Pierson v. Post

RULE: A person who is pursuing a wild animal does not acquire a right to that animal by the mere fact of pursuit; Mere pursuit of wild animal with an intent to capture does not constitute ownership. - Post was out fox hunting - Cornered the foxes on a beach that does not belong to anyone - Pierson kills the fox and claims bragging rights even though - Post chased it all day - "Pursuit and wounding is not enough" - Does not count as possession

Diamond v. Chakrabarty (1980)

Ruled that a man-made life form (genetic engineering) could be patented. - GE engineer Chakrabarty developed genetically-modified bacteria that "eat" oil - Initially denied patent - appealed to Supreme Court - Supreme court said bacteria is patentable because it is a "manufacture" or "composition of matter" - Started a race of GMO patents

Julia Garcia V Walmart

She sold her car for Christmas money, and upon payment, she tried to use a $100 bill. Both times, a cashier and manager ripped up her money. They detained her at the entrance of Walmart and told other customers that she was a fraud, and they waited for an hour for police to arrive - Garcia sued for defamation and false imprisonment - cops checked her money which was valid, and Walmart had to pay her back - case settled

Skidmore v. Led Zeppelin

Skidmore sues Zeppelin for remastering his song "Stairway to Heaven" Skidmore said this is copyright Court found out that the bands at least knew eachother and had talked about him having the beginning of the song and as a result... Defendants asseted three defenses: abandonment, waiver, lanches, and defective copy Court found no copyright indrigement as a result Copyright, uniqueness Skidmore said Zepplin stole his 7 notes Court through case out Said the 7 notes were not unique enough

Bollea v. Gawker

Someone leaked sex tape of Bollea w/ his friend's wife, leaked to Gawker who posted it to their website, said he already talked about it in an interview so it was not private, Hogan sues for publication of private facts, states he talked about it in his public persona as, Hulk Hogan while his private life as Bollea should remain a secret, publication of celebrity's sex tape w/o content is violation of right to privacy, you can distinguish a public side to a private side - got 115 million in compensatory damages and 35 million in punitive damages

piracy

Stealing copyrighted work by downloading or copying it in order to keep, sell, or give it away without permission and without paying.

Cook v. Sullivan

Sullivans transformed their property to support a new house, but this had effect on of unreasonabilitzy and substantially harmed the Cook's property. Water flooded the Cook's property did not flow from the Sullivan's property - if it had it would have been trespassing Hardship: they must move because they did not present another option House built on filled in wetlands House next door got flooded because all the water was forced onto one area Brought a trespass claim, but it was not trespass because the water did not come from the neighbor Nuisance claim instead but statute of limitation already passed Sued again for nuisance and they won Had to move their house

expectation of privacy

Supreme Court test for whether Fourth Amendment protections apply. - many business operations do not have this - warrants and probable cause are not needed at US airports

Vanna White v. Samsung

TORTS PARTIES AND LEGAL RELIEF REQUESTED Plaintiff Vanna White sued Samsung for depicted a robot with her image next to a "wheel of fortune" in their VCR ad. She was not compensated. LEGAL QUESTION Did Samsung infringe on Vanna White's rights when they appropriated her identity? REASONING OF THE COURT Yes, the court overturned the lower court. Vanna White's publicity is marketable and worth money. Action can be taken if: 1- The defendant's identity is used 2- The appropriation proves advantageous to the Samsung a. Lower court says no but this court says yes - publicity is marketable 3- There is no consent 4- There is resulting injury PRECEDENT Appropriations of marketable figures infringes the right of publicity for those people.

Alice Corporation Pty. Ltd. v. CLS Bank International

The Court held that patent law should not restrain abstract ideas that are the "building blocks of human ingenuity" and held all of Alice's claims ineligible for patent protection. Because using a third party to eliminate settlement risk is a fundamental and prevalent practice, it is essentially a building block of the modern economy. The Court held that Alice's claims did no more than require a generic computer to implement this abstract idea of intermediated settlement by performing generic computer functions, which is not enough to transform an abstract idea into a patent-eligible invention. Patents Alice tries to patent the process of using a computer to verify transactions Patent not granted People have been doing this, just not with a computer

Coastal Oil & Gas Corp. v. Garza Energy Trust

The court refused to hold Coastal liable for technical trespass under Salinas's land. It determined that the nature of subsurface rights required a showing of some injury Salinas leased the right to drill on Share 13. The court argued that any losses from gas captured from neighboring land could be addressed by increased drilling on one's own land The court held that the rule of capture precluded damages for drainage by hydraulic fracturing; hence, there was no actionable trespass. According to the court, the lessors failed to show what amount of drainage a reasonably prudent operator should have prevented.

Industry Custom

The courts will also look to generally accepted custom in the industry in determining whether the proposal qualifies as an offer.

Duty of Care

The duty of all persons, as established by tort law, to exercise a reasonable amount of care in their dealings with others. Failure to exercise due care, which is normally determined by the reasonable person standard, constitutes the tort of negligence.

trade dress

The image and overall appearance ("look and feel") of a product that is protected by trademark law.

proximate cause (legal cause)

The injury or damage must have been foreseeable

property law

The law of the legal fence that establishes exclusive right in someone called an owner.

Right of Redemption

The legal ability to buy back one's property within the time specified in each state after a judicial sale by paying the debt, interest and certain costs. - usually 6-12 months after foreclosure

Strict Liability

The legal responsibility for damage or injury even if you are not negligent - no need to prove intent or negligence, just action and harm - ultra hazardous activities - product liability

How long do copyrights last?

The life of the creator plus 70 years. - If owned by corporation, 120 years from creation / 95 from publication - Used to be life plus 50, but extended in the 1900s - Disney didn't want their films to expire so they requested a congress man to extend

Fee Simple

The maximum possible estate or right of ownership of real property, continuing forever; also known as fee simple absolute.

Doctrine of Accession

The ownership of a thing, whether it be real or personal, movable or immovable, carries with it the right to all that the thing produces, and to all that becomes united to it, either naturally or artificially. The doctrine of accession applies only in situations in which one person (1) annexes chattels to real property (2) owned by another under such circumstances that the (3) law will not permit the chattels' removal.

Rule Against Perpetuities

The rule that prohibits an owner from controlling what he or she owns beyond a life in being at the owner's death, plus 21 years. - protects from trusts that last forever

reasonable person standard

The standard of behavior expected of a hypothetical "reasonable person." The standard against which negligence is measured and that must be observed to avoid liability for negligence. - jury decides - most negligence cases come down to this - doctors are not held to this standard

Trademark Dilution

The unauthorized use of a distinctive and famous mark in a way that impairs the mark's distinctiveness or harms its reputation.

Furman v. Georgia

This 1972 Supreme Court case struck down all state laws allowing the death penalty stating that they allowed for too much discretion on the part of the judge and jury resulting in lack of consistent administration of the penalty. 4 basic principles should be used to determine if a punishment should be deemed cruel and unusual: 1) punishment that is so severe as to degrade human dignity 2) punishment that is inflicted completely in an arbitrary manner 3) punishment that is largely rejected by society 4) punishment that is patently unnecessary

Palsgraf v. Long Island Railroad

Tort: Negligence Element: Duty of Care There must be a direct foreseeable link between the negligent act and the damage. Injury caused to a party of sufficient distance in an unforeseeable manner does not attract a duty of care. Conductor helped a guy on the moving train He drops package with fireworks, which explodes Shock wave or crowd surge caused a luggage scale to fall on Palsgraf who is standing farther down the platform Courts says no proximate cause Not reasonably foreseeable harm

double jeopardy

Trial or punishment for the same crime by the same government; forbidden by the Constitution.

mail or wire fraud

Using either the US postal service or electronic means of interstate communication to carry out a scheme to defraud

money laundering

When illegally obtained money is put into or through a business to hide its origin - You've already committed crimes and gotten money from these crimes - Accumulate a lot of cash and put it into a business that often accepts a lot of cash - Ex: car wash, strip club, pawn shop

Misdemeanor

a crime or offense that is less serious than a felony; any minor misbehavior or misconduct - straight to trial

Felony

a crime, typically one involving violence, regarded as more serious than a misdemeanor, and usually punishable by imprisonment for more than one year or by death. - must see a grand jury before trial

Obstruction of Justice

a criminal act involving the interference of the administration of the laws during the investigations and conduct of trials

aiding and abetting

a criminal action that arises from association with and from assistance rendered to a person guilty of another criminal act - similar to conspiracy - did not necessarily commit the same criminal acts as others

Pure Comparative Negligence

a defense accepted in some states whereby the defendant is not liable for the percentage of harm that he or she can prove is due to the plaintiff's own negligence - Jury assigns plaintiff's %, recovery reduced by that amount

Patent Trolls

a firm or individual that produces no products or services and owns patents only to obtain licensing fees from other firms

IIMD

a mental/emotional injury tort - intentional infliction of mental distress

scheme to defraud

a plan or program designed to take from a person the tangible right of honest services

trade secrets

a secret device or technique used by a company in manufacturing its products. - nonpublic info - conveys a competitive advantage - ex: KFC chicken - Competition doesn't care about the exact ingredients but rather where they get them from and how much they pay for them

sentencing guidelines

a set of standards that define parameters for trial judges to follow in their sentencing decisions

injurious falsehood

a statement of untruth that causes injury or damage to the party against whom it is made

"glofish"

a transgenic strain of zebrafish, contain a red fluorescent protein from sea anemones

deeds of trust

a type of document to secure an extension of credit through an interest in the land - deed is held by a third party called a trustee who holds full legal ownership to the land

blurring

a type of trade mark dilution that occurs when the distinctiveness of a mark is reduced by another's use of the same mark in a different context

tarnishment

a type of trademark dilution that occurs when a mark's reputation is harmed by another's use of the same mark in a different context - Not only are you devaluing the brand, but you are associating it with something that is negative

promissory note

a written and signed promise to pay a sum of money at a specified time - terms to repay a loan - amount, interest, term - private contract

OJ Simpson

acquitted in criminal court, but found guilty and has to pay in civil court

Branham v. Ford Motor Co.

after over-correcting the Bronco, it rolled and threw children from the vehicle, sued for two product liability claims (failing to test the seat belt sleeve AND a design defect claim related to the car's tendency to roll) - court reviewed the two major tests used by state courts to determine if a design defect made a product unreasonably dangerous: the consumers expectation test and the risk-utility test - branham used expert testimony to show that Ford could have used "McPherson suspension" system to significantly increase the Bronco II's handling and stability without increasing costs or compromising the sport utility features - court determined that in S. Carolina, the risk-utility test is now the standard for all product design defect cases because it focuses on the design of the product rather than the consumer of the product. - the plaintiff must present evidence of a reasonable alternative design that considers the cost, safety, and functionality of the product

cause in fact

an act or omission without which an event would not have occurred. Courts express this in the form of a rule commonly referred to as the "but for" rule: the injury to a person would not have happened but for the conduct of the wrongdoer.

conspiracy

an agreement or a "kind of partnership" for criminal purposes in which each member becomes the agent or partner of every other member - Says that if we all agree to commit a crime, even if I don't actually go, I can still be held responsible - Has to have some overt plan, not just verbally stating

racketeering

any act or threat involving specified state law crimes, any act indictable under various specified federal statutes, and certain federal offenses - Laws that were passed after the 20s and 30s - If we can show the business is doing certain crimes and you are the head of the business, you can be charged - Don't have to actually have done anything, but it is assumed you were likely aware

Patent Act

any new and useful process, machine, manufacture or composition of matter or any old and useful improvement - US code, title 35, sec. 101 - US statute

overt act

any transaction or event knowingly committed by a conspirator in an effort to accomplish some object of the conspiracy

perfection

arises when a security interest has attached and the creditor has taken all proper steps required by Article 9

law of "finds"

assert possession over something that does not belong to anyone

trademarks

brands that have been given legal protection so that their owners have exclusive rights to their use - Protects "marks" that identify a good or service - Can be names, symbols, color schemes, even sounds - Can assert common law rights - Can register with state or fed (USPTO) - Keep up registration and use, lasts forever - Must avoid abandonment/ genericization - There is a trademark fee - Must register in every category you will use - Ex: Nike will register in apparel, shoes, sports, etc = Some companies lose their trademarks - Ex: zipper used to be a specific brand - Now it is used for all zippers

burglary

breaking into a building with the intent to commit a felony - most common felony is larceny

How was land that UGA dorms are built on granted?

by eminent domain

How does UGA profit off their specific brand?

by licensing rights to other companies for a percentage of a profit - ex: Nike

Doctrine of partition

can force the separation of concurrent ownerships

exigency

circumstances that would cause a reasonable person to believe that entry (or other relevant prompt action) was necessary to prevent physical harm to the officers or other persons, the destruction of relevant evidence, the escape of the suspect, or some other consequence improperly frustrating legitimate law enforcement efforts. ex: A trunk of a car where the muffled cries for help can be heard. police can enter.

infringement

civil violation of a trademark or patent

Financing Statement

contains the names and addresses of the creditor and debtor, a reasonable description of the collateral, and the signature of the debtor; expire five years after filing

patent

conveys a right to exclude others from making, using, selling, or importing the covered invention

US v. Causby

court case that decided air property rights; you have rights to the air to the extent that you can occupy and use it - Causby had a chicken coop and house next to an old military plane runway - Used again for world war 2 and planes began to fly 86 feet over his house - Claim of eminent domain - Wanted the government to pay him for his property - Set a parameter for air space "as much as he can reasonably use and occupy in connection with the land"

bankruptcy crimes

crime for bankrupt debtor to falsify info filed in the proceedings. crime to present false claim.

Modified Comparative Negligence

defendant must be more than 50% at fault before the plaintiff can recover - Plaintiff must be <50% at fault or gets $0 - Followed in GA - Some states allow 50/50 fault

willfully and knowingly

defines intent, voluntarily and purposefully commits act with specific intent - not because of a mistake or accident - good faith misunderstanding if they don't realize the requirements of the law

Racketeer Influenced and Corrupt Organizations Act (RICO)

extends to any person who: - uses or invests income from prohibited activities to acquire an interest in or to operate an enterprise - acquires or maintains an interest in or control of an enterprise - conducts or participates in the conduct of an enterprise while being employed by or associated with it

willful and wanton negligence

extremely unreasonable behavior that causes injury

"Flavr Savr" tomato

first commercial example of a GM food; genetically modified to delay the ripening and rotting process so that it would stay fresher longer; - first to get FDA approval - a commercial failure because it tasted terrible

How long do trade secrets last?

forever

mail and wire fraud

fraud is through US postal system or internet - Charles Ponzi (pyramid scheme)

spider goat

gene from spider inserted into goat. Goats makes silk of the spider web in their milk. Flexible, stronger than steel. Used in bullet proof jackets. - the military wants to make armor, sutures, and airplanes out of it - they own many spider goats - wanted to patent it

Bailement

giving possession and control of personal property to another person - understanding that the other person must return the object at some point or otherwise dispose of it

Kelo v. City of New London

government can take land for public use/purpose (eminent domain) - Government wanted to take Kelo's house and give it to a private company, Pfizer - Pfizer wanted to build a campus, so City of New London said they would take their home - City argued even though it is a private company, it would economically benefit the town - Supreme court said the economic benefit was enough for the city to take it - Pfizer didn't even end up using the land - Dissenting judge said this precedent will only benefit the wealthy

life estate

grants ownership in land for the lifetime of a specified person

professional standards

guidelines of acceptable behavior and performance established by professional associations - doctors, lawyers, accountants, etc. are held to the standard of their profession

Mens Rea

guilty mind - essential for every crime

BT crops

have been given a bacterial gene that gives chemical protection against pests

deficiency

if a foreclosure and auction do not produce enough money to satisfy the debt owned by the mortgagor, the credit-mortgagee can still sue the mortgagor for the balance owed

interference with contracts

if a third party encourages a breach in any way, then that third party may be liable in tort

Design Defect

in product liability litigation, a claim that a consumer suffered an injury because a safer product design was not used - a product is manufactured according to the manufacturer's standards, but the product injuries due to its unsafe design - ex: lack of warnings on inherently dangerous products

How long do trademarks last?

indefinitely; they are renewable every 10 years so long as the trademark continues to be used in commerce

Donative Intent

intent to transfer ownership to another at the time the donor makes actual or constructive delivery of the gift to the donee - once a gift is given, no taking it back

secured transactions

involves a creditor who has sold something on credit or made a loan to a debtor who agrees to give the creditor a security interest in a valuable object, called collateral

herbicide resistance

involves inserting a gene that makes plants immune to herbicide (round up ready) aids in controlling weeds - long term exposure causes cancer - Monsanto settled for hundreds of millions of dollars

Bill Cosby

is an African American stand-up comedian, actor, and author recently under fire for drugging and sexually assaulting numerous woman. admitted to sexual assault in civil court under the assumption that he would not be prosecuted 10-15 years later the case was reopened and he was prosecuted, but the case was thrown out because defendant was promised he would not be prosecuted

real property

land, right to access land, "fixtures"

robbery

larceny by violence or threat such as with a gun

Anti-SLAPP

laws don't provide an additional defense or privilege to libel claims as much as they provide a procedure for quicker dismissal of a claim. strategic lawsuit against public participation. Vary by state. If it looks like the lawsuit is used to prevent public debate, the defendant can file a motion to dismiss at the very beginning of the trial. Then, the plaintiff has to convince they have a real reason to sue (and not just shut the defendant up) or they pay all the legal fees the defendant has incurred so far Business version is "injurious falsehood" - one business accusing another of false, bad things that hurt their reputation. GA does not have a separate tort for injurious falsehood - just sue under regular defamation.

how does Monsanto use intellectual property?

licenses you the rights to use the intellectual property in the seeds - has to pay every year to use the seeds

Digital Millennium Copyright Act (DMCA)

makes illegal the effort to get around (circumvent) devices used by copyright owners to keep their works from being infringed.

Liebeck v. McDonalds

mcdonaolds coffee case plaintiff = liebeck, defendant = mcdonalds old lady liebeck purchases drive thru coffee. she puts it between her lap to get cover off it spills and she is badly burned coffee very hot at this place because truck drivers 1. duty - to not harm customers 2. breach - must analyze 3. causation - but for hot coffee no burns, it is foreseeable that coffee this hot can burn someone if spilled 4. damages - yes for breach go through standard practice it was 10 degrees to hot if use hand can see that even though p is small it will be higher than b because b is 0, os there is a breach of duty there were many punitive damages (3 times compensatory) mcdonalds can sue back for contributory 1. duty - to keep self safe 2. breach - yes, spilled coffee 3. causation - yes yes 4. damages yes court says she is 20% responsible - $1,000,000 in damages but Pl only got $800,000 because of contributory

intentional interference with contractual relations

most common example is one company raiding another for employees - another employer can't induce employees to break their already existing contracts

industries concerned with drone rights

movies, real estate, oil, gas, roofing companies, insurance companies

brand dilution

occurs when a brand extension adversely affects consumer perceptions about the attributes the core brand is believed to hold - can only claim this if they are a "famous brand"

embezzlement

occurs when a person entrusted with another's money or property fraudulently appropriates it Legitimate owner of a business but then pocket extra money that people spent at your business

proprietary

of or relating to an owner or ownership

title

ownership

plant patents

patents that recognize the discovery of new plant types that can be asexually reproduced - many inventions to plants may also cover genetically modified plants

Kickbacks

payments made to a person who has facilitated a transaction (bribery)

intentional torts

purposeful harm, possible punitives - Battery - Unwillful touching - Assault - Act like you are going to hurt them - False imprisonment - Nuisance - Trespass - To realty - To chattels - Conversion

Categories of Property

real property, tangible personal property, intangible personal property

Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

requires that member countries provide protection for all of the forms of intellectual property

Times v. Sullivan

ruled that editorial/political advertising is within First Amendment protection; did not include commercial advertising - have to prove they knew it was wrong before they published it - have to prove they knew they were lying police chief sued NY times for making false statement about their police force that injured their character. Police officer won in court. Supreme court overturned that saying they wanted to protect members of the press when reporting something. If the defendant have made a defamatory statement against a public figure, the defendant doesn't have to prove what they said was true, but the plaintiff must prove it was false as well as the defendant knew it was false and publishes it anyways.

exculpatory no

someone cannot be charged with making a false statement if it is a false denial of guilt to a federal official - but cannot lie - ex: Olympic track star Marion Jones, sentenced to 6 months in prison for lying to investigators

Lanham Act of 1946

spells out what kinds of marks (including brand names) can be protected and the exact method of protecting them - trademark - service mark - certification mark - collective mark

likelihood of confusion

standard employed in trademark law to determine if the use of a mark by two companies is too similar

trade secret law is what kind of law?

state law

attachment

takes place when 1) a secured party has given value 2) the debtor owns the collateral 3) a security agreement is given

Misappropriation

the act of taking what belongs to someone else and using it illegally for one's own gain

Defamation

the action of damaging the good reputation of someone; slander or libel. - Slander (oral) or libel (written) - Statement of fact - Publication - Injury to character - Truth is a defense - If public figure / matter, use "actual malice" rule - business version is "injurious falsehood" (not in GA)

Just Compensation

the amount of money the government must pay the owner of property it seizes through eminent domain - Value of property at time of taking - No consideration of post-development value - Can challenge appraisal - Government can keep you waiting "reasonable time" after declaration of condemnation

estate

the bundle of rights and powers of land ownership

Fair Use

the conditions under which you can use material that is copyrighted by someone else without paying royalties - result is often specific to the case (judge and jury) - 4 factors: - purpose and character of use - nature of the protected work - amount and substantiality of portion used - effect of use upon the potential market - to win, the factors have to be overwhelming on your side

copyrights

the exclusive legal rights of authors, composers, playwrights, artists, software programs, and publishers to publish and disperse their work as they see fit - creative works - valid once set in tangible media - can register with US office

rule of first possession

the first person to reduce previously unowned things to possession becomes their owner - difference between lost and mislaid items ex: money on the ground is lost, but money left on a table is mislaid

cause in fact (but for causation)

the objective determination that the defendant's act triggered a chain of events that ended as the harmful result, such as the death in a homicide - easy to prove - if not the breach, the harm would not have occurred

Rule of Capture

the owner of an oil or gas well could claim all that is pumped from it, regardless of whether the oil or gas migrated from adjacent property - As long as you are on your property and drilling om your property, if you take oil from a reserve that crosses your property line underground, it is ok - Race to get the oil in most states - Some states use: Correlative rights (minority view) Certain amount allotted for each person

Correlative Rights Doctrine

the owner of land overlaying percolating water is considered to be a joint owner with other property owners whose property overlays the percolating water - minority view

land sales contract

the owner of land sells it by contract subject to the condition that the seller retains title to the land until the buyer pays the purchase price

bailor

the party who gives up possession, but not the title, of personal property in a bailment

assault

the placing of another in immediate apprehension for his or her physical safety

Leasehold Estate

the property right granted to tenants by a landlord - can be definite duration of time - can be indefinite duration of time

easement

the right to use land for a specific and limited purpose

Easements

the right to use land for a specific and limited purpose - by contract - by necessity - by prescription

easement in gross

the right to use land for a specific, limited purpose unrelated to any adjacent parcel - ex: Georgia power can come to your house and cut down trees to maintain a power line without your possession

economic and industrial espionage act

the theft or misappropriation of a trade secret with the intent or knowledge that the offense will benefit any foreign government, foreign instrumentality, or foreign agent. - criminal violation to expose secrets - ex: Coke and Pepsi scandal

Larceny

the unlawful taking of personal property with the intent to deprive the rightful owner of it permanently

utility

the way a product works - ex: the way the keyboard on an iPhone pops up

trespass

the wrongful damage to, or interference with, the property of another - to realty - to chattels

conversion

the wrongful exercise of dominion and control over another's personal property - often in business situations - deprives owners of their lawful right to exclude others from such resources, serious invasion - ex: failing to return at specific time, delivering to the wrong party, damage done to property

ultrahazardous activities

those activities that have an inherent risk of injury and therefore may result in strict liability - doctrine from UK case Rylands v Fletcher - poorly built reservoir flooded mine - like Hammurabi's law - blasting, crop dusting, keeping wild animals

presumption of innocence

to be presumed innocent until found guilty by a petit jury

Concealment

to secrete, falsify, mutilate, fraudulently transfer, withhold information or knowledge required by law to be made known, or take any action preventing discovery

Felony Murder Rule

unintentional deaths that occur during the commission of some felonies are murders - Officers who helped murderer of Floyd, if they were committing a felony, then they are also murderers - Way to convict people of murder even if they had no intent to kill anyone - Ex: if 3 people rob a bank and only one kills someone, everyone is a murderer - Can even work for conspiracy - Ex: if you talked about robbing a bank but then stayed home and everyone else still went and someone died, you can still be considered a murderer

False Imprisonment

unlawful restraint or restriction of a person's freedom of movement

Battery

unlawful touching of another person without consent

Tupac and snoop at Coachella 2012

using a hologram of dead celebrities... publicity rights? likely allowed

invasion of privacy

violating a person's right not to have his or her name, photo, or private affairs exposed or made public without giving consent - intrusion on seclusion - publicizing private facts - right of publicity

Riley v. California

warrantless search and seizure of digital contents of a cell phone during an arrest is unconstitutional found illegal information through illegal search of a phone Riley won and that part was not admissible in court, but he was still sentenced to 12 years in prison

Adverse Possession

when the land of another private person is adversely and exclusively possessed in an open and notorious way - open and notorious - actual and exclusive - continuous - wrongful - for a prescribed period of time (20 years in GA)

the Venetian patent act of 1474

world's first patent statute for the purpose of rewarding new ideas

bad checks

writing a check knowing it will bounce

torts

wrongful acts for which an injured party has the right to sue - from Latin "tortus" meaning "twisted" - different categories based on intent (intentional torts, negligence, and strict liability) - ex: black ice driving and then hit someone would not count

Amount and substantiality of the portion used

• the amount and substantiality of the portion of the copyrighted work used compared to the copyrighted work as a whole. • the greater the amount of a copyrighted work used, the less likely that a use will be fair. - how much did you steal