Boston University School of Law
Courts often use possession to determine who should own unclaimed resources. Yet, as Oliar and Stern demonstrate, the concept of possession is little more than a metaphor, capable of being applied to a broad range of phenomena. The authors helpfully deploy “time” as a metric to sort through the rules determining what should count as possession, and they survey the likely costs and benefits attached to choosing earlier versus later events as triggers for acquiring title.
With those tools in hand, Oliar and Stern employ “time” and the analogy of physical possession to address problems in copyright, patent, and trademark law. The result is an article that offers fascinating windows both on the economics of private ownership, and on various doctrines within the legal domain conventionally labeled intellectual property (“IP”).
Their methodology raises some flags for a copyright scholar, however. Their approach comes from a scholarly subfield that focuses on eliminating waste in the exploitation of intellectual products rather than on inducing the creation of intellectual products. The subfield’s emphasis on the management of existing products could lead to perpetual term length for copyrights and patents, because investment in maintenance and exploitation can be continual. An analytic structure that can lead to perpetual ownership is alien to the constitutional logic that gave Congress the power to grant exclusive rights to authors and inventors only for “limited times.”
Wendy J. Gordon,
Response to Oliar and Stern: On Duration, the Idea/Expression Dichotomy, and Time
Boston University Law Review Online
Available at: https://scholarship.law.bu.edu/faculty_scholarship/956