Exam Guide 1 I. Right to Exclude v. Rights of Access 3

I. Right to Exclude v. Rights of Access

A. PUBLIC POLICY LIMITS ON THE RIGHT TO EXCLUDE

• 
  Facts: Defendants enter private property to aid migrant farmworkers employed and housed there, and charged with criminal trespass after refusing to depart upon demand of owner
  
• 
  Rule: ownership of real property does not include the right to bar access to governmental services available to migrant workers
  
• 
  Rule: One should use his property as not to injure the rights of others
  
• 
  Holding: Reversed and remanded; no possessory right invaded
  

• 
  Facts: ABC Primetime Live conducted undercover expose of eye surgery practice without consent of plaintiffs
  
• 
  Rule: “Testers” posing as prospective buyers to gather evidence of discrimination are not trespassers even if they are private persons not acting under color of law (public policy)
  
• 
  Holding: Entry did not infringe on the kind of interest the law of trespass protects; Interference was not with the ownership or possession of land
  

• 
  Intent requirement is met if D engaged in a voluntary act, such as walking onto the property
  
  • 
    Not necessary to show that the trespasser intended to violate the owner’s legal rights
    
• 
  The intrusion occurs the moment the non-owner enters the property
  
• 
  A trespass may occur either above or below the surface, such as digging under the surface or having a deck overhang on the property
  
• 
  A trespass is privileged (and thus not wrongful) if:
  
  • 
    Entry is done with the CONSENT of the owner
    
  • 
    Entry is justified by the NECESSITY to prevent a more serious harm to persons or property
    
  • 
    Entry is otherwise encouraged by PUBLIC POLICY
    

• 
  Mere touching is not sufficient to constitute trespass, there must be some injury to the property or show either dispossession or intentional using or intermeddling with it
  

B. TRESPASS REMEDIES

• 
  Facts: Landscaper hired by defendants cut down oak trees on property of neighbor without neighbor’s permission. Plaintiffs had previously requested permission to cut the trees to enhance their ocean view, which was rebuffed.
  
• 
  Rule: Judge has broad discretion to determine whether evidence other than fair market value is relevant to question of damages
  
• 
  Rule: When applying restoration cost measure of damages, a test of reasonableness is imposed – cost of replacement or reconstruction must be reasonable, and replacement or reconstruction itself must be reasonably necessary
  
• 
  Holding: Restoration cost upheld as measure of damages in lieu of value of timber cut or diminution in market value resulting from cutting; limiting damages to market value or diminution would encourage, rather than deter, self-help
  

• 
  Facts: Defendant delivered mobile home over plaintiffs’ property despite their refusal to grant permission
  
• 
  Rule: Factors court must consider when determining whether punitive damage award violates Due Process Clause: (1) degree of reprehensibility of the conduct, (2) disparity between harm or potential harm and the punitive damage award, (3) difference between remedy and civil or criminal penalties authorized or imposed in comparable cases
  
• 
  Holding: Reversed and remanded; when nominal damages awarded for intentional trespass, punitive damages may also be awarded
  

1. 
   Value of property damaged/removed
   
2. 
   Diminution in value of property resulting from injury
   
3. 
   Restoration cost
   

• 
  If a trespasser damages property, law imposes on trespasser a duty to compensate the owner for the damage
  

• 
  Facts: Casino excludes plaintiff from blackjack tables because of card counting
  
• 
  Rule: When property owners open their premises to the general public in pursuit of their own property interests, they have no right to exclude people unreasonably
  
• 
  Rule: Property owners may exclude from their premises those whose actions “disrupt the regular and essential operations of the premises, or threaten the security of the premises and its occupants (e.g. the disorderly, the intoxicate, the repetitive petty offender)
  
• 
  Holding: Absent a valid rule by the Gaming Commission, Upton may not be excluded as he is not threatening and has not disrupted operations
  

• 
  Uston extended right of reasonable access to all business open to public (minority rule)
  

1. 
   More likely to be monopolies than other businesses; denial of service tantamount to denying ability to travel or find a place to sleep away from home
   
2. 
   Provide necessities whose denial places individuals at risk during travel
   
3. 
   Hold themselves out as ready to serve public and public relies on this representation
   

• 
  Does not prohibit discrimination on basis of sex
  
• 
  #Singer – would read statute’s list of establishments as illustrative and not exhaustive (unlike courts), feels retail stores should be included
  

• 
  Regulates race discrimination only
  
• 
  Applies to private conduct as well as legislation passed by state
  
• 
  §1981 Includes the right to enter a store or other service provider
  
• 
  Courts split on whether §1981 prohibits discriminatorily following people in stores:
  

• 
  Minority of courts hold conduct violates right to contract under §1981 and/or right to purchase personal property under §1982
  
• 
  “Right to make contracts” denied only when patron is “actually prevented and not merely deterred” from making purchase or receiving service (majority rule)
  

• 
  Example: Group limited to men, but with no other selection criteria and unlimited in size, is likely to be held a public accommodation
  

• 
  ADA requirements for alteration of existing facilities do not apply to buildings designated historical landmarks under federal or state law if alterations will “threaten or destroy historic significance of building
  

• 
  Fair use analogous to right to exclude
  
• 
  Difficulty is that it is easier to define disputed “property” w/ respect to trespass than in copyright
  

• 
  Facts: Local telephone subject to state regulation that requires it to issue updated telephone directory annually and competes with defendant, which publishes area-wide directories, for yellow pages advertising. Plaintiff refuses to license its listings to defendant, who then uses them without consent.
  
• 
  Rule: Originality is a constitutional requirement for copyright protection Art. I, §8
  
• 
  Rule: Facts are never original; copyright in compilation does not extend to the facts it contains; compilation is copyrightable only to extent it features original selection, coordination, or arrangement
  
• 
  Holding: Selection, coordination, and arrangement of white pages do not satisfy minimum constitutional requirements for copyright protection; defendant’s use of listings cannot constitute copyright infringement
  

Holding: Supreme Court holds VCR manufacturer and retailers not liable for contributing to copyright infringement merely because VCRs can be used to copy works protected by copyright law

Rule: Manufacture or sale of product capable of “commercially significant non-infringing uses” is insufficient to constitute “contributory infringement,” even if VCRs were used by owners for infringing uses

Dissent: Adopts different test where copyright owner need prove only potential for harm to the market for the value of the copyrighted work, when the proposed use is an “unproductive one”

• 
  Facts: Defendants distribute free software allowing users to share files through peer-to-peer networks , are aware users employ their software primarily to download copyrighted files, and made no effort to filter copyrighted material or otherwise impede sharing
  
• 
  Rule: One who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.”
  
• 
  Rule: “The classic instance of inducement is by advertisement or solicitation that broadcasts a message designed to stimulate others to commit violation.”
  
• 
  Holding (Souter): Vacated and remanded; substantial evidence in plaintiff’s favor on all elements of inducement
  
• 
  Concurring (Ginsburg): Under Sony rule, evidence insufficient to demonstrate a reasonable prospect of substantial or commercially significant non-infringing uses of products over time
  
• 
  Concurring (Breyer): Evidence sufficient under Sony rule to demonstrate substantial or commercially significant non-infringing use; no need to modify Sony as it works to protect technology in its current form
  

Suntrust Bank v. Houghton Mifflin Co., 11th Cir. (2001)

• 
  Facts: Defendant published The Wind Done Gone, a fictional work based on Gone with the Wind. Plaintiff seeks injunctive relief.
  
• 
  Rule: Copyright laws enacted to achieve main goals: (1) promotion of learning, (2) protection of the public domain, (3) granting of an exclusive right to the author
  
• 
  Rule: Fair use of a copyrighted work, for purposes such as criticism or comment, is not an infringement of copyright
  
• 
  Rule: Four fair use factors from Copyright Act: (1) purpose and character of the use, (2) nature of the copyrighted work, (3) amount and substantiality of the portion used, and (4) effect of use on potential market of original work
  

• 
  Rule: 4 required elements for preliminary injunctive relief: (1) a substantial likelihood of success on the merits, (2) a substantial threat of irreparable injury if the injunction were not granted, (3) the threatened injury to P outweighs the harm an injunction may cause the D, (4) granting the injunction would not disserve the public interest
  

• 
  Holding: Vacated and remanded; plaintiff did not establish likelihood of success on the merits and TWDG is entitled to a fair-use defense