August 18, 1998
Helpful to go over notes after class. Good to be able to put cases back together after we discuss them in class.
Johnson v McIntosh
Johnson got land from grants from 2 different Indian tribes (1773, 1775)
A title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in 1773, and 1775, cannot be recognized in the Courts of the United States.
D said he was given the land from the US after these grants were made.
Both US and Indians were claiming right to sell land (or the grant to the land). But as the United States had purchased the same lands of the same Indians, both parties claim from the same source.
Case of ejection
and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government.
See page 4: Issue: whether the Indian title can be recognized in the courts of the United States.
Discovery gives white man the right to the land. European nations could discover other continents.
Does the power of the Indians give private individuals right to the land?
Principle of discovery says that whoever claims land first gets to keep it.
According to every theory of property, the Indians had no individual rights to land; nor had they any collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators.
DISCOVERY This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
The exclusion of all other [**40] Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.
Europeans considered original inhabitants to not count (in the process of discovery)
Conquest
August 20, 1998
Johnson v McIntosh - 21 us 543
Question: whether this title can be recognized?
A. Europeans v Europeans AND US v Indians
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.
Right to possession under Johnson
Physical presence of Indians gives right to land use. \
Permissive Indian occupancy may be extinguished by Congress in its own discretion without compensation.
We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.
Conflicting definitions of land use. Have to choose between them. What Marshall said.
"to discover countries then unknown to Christian people"
Alaskan indians claim they were never conquered.
Possession / occupancy (the same thing) usually means the right to use stuff on the land.
What does conquest mean? Indians say it means specifically conquest of them. US says the Indians are conquered because they conquered all the rest of the Indians in the lower 48 states.
Right of possession is something U.S. Gov. can take away at any time. Did Marshall see right as possession as something that could only be extinguished through conquest or sale?
Glancy reading notes (pp 19-24):
Patent
Copyright
Trademarks
Trade Secrets
Rights of Personality
August 25, 1998
International News Service v AP
A -> B -> C
Cannot claim copyright infringement unless someone makes an exact copy.
Shift in decision from piracy of intellectual property to unfair competition. How is a claim of unfair competition different from a claim of piracy of intellectual process.
Court of equity - no longer two sets of courts (law courts and equity courts). This type of court does not mean it is only there to do justice. Still needs a cause of action, legal rules to support claim. Means P is seeking an injunction – this makes it an equitable action.
Specific performance – if someone changes mind on a contract, but person wants the specific performance of the contract still. Ex: Broke an agreement to sell car, person still wants the car.
Equitable restitution –
Investment of resources at stake – skill, labor, money
Between competitors in same type of business.
Unfair competition
August 27, 1998
Property interest in personality
Midler case:
A.
Tort of conversion – taking property from others. Ex: take a book, that book is now converted to the person who took it. You can sue in a civil action for damages from conversion.
(Issue is whether Midler has control over something that sounds like her voice. Isn’t this analogous to the next case in which White tries to take control over an image that reminds viewers of her?)
Intent to misappropriate identity is not always relevant in property cases…?
White v. Samsung Electronics America, Inc
Distinguishing characteristics from last case:
Lanham act – deals with unfair advertising.