Question 11 from my Property Law Final Exam.

Q 11: (16 points) By the year 2050, Dean Lidsky has retired and is now spending her time as an inventor. She has created a set of self-replicating crawling “bugs.” To be clear, these are small autonomous robots that do the following: (1) individually move about the world scavenging for parts; (2) once enough parts are collected, a bug will build a replica of itself. The bugs have not been shown to be generally dangerous and have learned to largely avoid human contact.

Mitchell has a “feeder” setup in his back yard with all sorts of spare-parts that the bugs have been using for self-replication. Mitchel included a radio-isotope in the spare parts he set-out and so can prove that 90%+ of the bugs in his area were built from his spare parts. Mitchell’s neighbor Trachtenberg has been capturing bugs to study them.

Who owns the bugs that Trachtenberg has captured?

= = =

I’d love to hear your thoughts:

36 thoughts on “Question 11 from my Property Law Final Exam.

  1. 11

    Questions, I suspect that there is supposed to be a patent exhaustion question in here, but . . .

    Did Mitchell buy his first bug from Lidsky or a licensee of Lidsky?

    Is Mitchell a licensee of Lidsky?

    Where did Trachtenberg capture Mitchell’s bugs?

    Do the bugs that Trachtenberg captured contain the radio-isotope?

    My best guess: The bugs should be treated as wild animals, and if Trachtenberg caught the bugs in the wild – they’re his regardless of whether they include the radio-isotope.

  2. 10

    You’re keeping us in suspense – what’s the best answer? I shared the question and discussed with my niece, who will be a 1L at Georgetown in the Fall and she’s curious to see if our thoughts are on the right track (they did mirror several of the comments posted by others).

    1. 10.1

      There israrely that type of feedback on these types of academic testing questions.

  3. 9

    It is hard to imagine any self-replicating robot that would not be deemed a nuisance.

    Not sure if it was really clear if the robots were programmed to return or have a home. If just released and no return to home, then pretty clear… The patent issue would be exhaustion and go to the seed case of Monsanto so maybe you own the ones you captured but didn’t give you the right to breed them and then sell them.

    1. 9.1

      Obviously too they would be like sheep that were grazing on someone else’s land so the issue is if you have abandoned them or are they grazing.

    2. 9.2

      I was thinking along those same (nuisance) lines.

      However, there could be another fun wrinkle thrown in: what is the level of autonomy of these self-replicating bots?

      If you look at the phrasing in the set-up, subtle indicators are present that it is the bots that are deciding where to go — “The bugs have not been shown to be generally dangerous and have learned to largely avoid human contact.

      Sure “not dangerous” helps – but does not clear – a state of being a nuisance, and the fact that the bots simply take what they want could be bad if systems that they take from happen to break down due to that taking.

      The fact pattern provided that at least one person “feeds” the bots does not change the nature of what the bots do, as to that general ‘just take.’

      But the fun wrinkle may be a degree of AI and self-volition, if these bots are “learning” to avoid human contact. Sure, not The Singularity, but certainly a degree of volition that does place them “outside of human control” at a general existence level (contrast wild animal with livestock – so a bit LESS like mere grazing sheep).

      1. 9.2.1

        CLEVER ANALYSIS!

  4. 8

    Would love to hear what got A’s on your exam! Personally, I am rooting for the Pierson v. Post response.

  5. 7

    Under property law, I would think the bugs that were set free should be considered abandoned property. Thus Dean Lidsky has no property right to the abandoned bugs and Trachtenberg owns the rights to the bugs captured.

    However, I think the more interesting right is copyright. Dean Lidsky owns the rights to make derivative works. Thus, even though they are self-replicating in the wild, as abandoned property, that “wild” replication of the derivative work is occurring per a process that Dean Lidsky instituted. Thus while Trachtenberg can own the bugs he captured. Trachtenberg cannot legally create derivative works, except under the fair use doctrine. So he couldn’t for instance put out parts for the bugs to self-replicate because he would be directly responsible for the creation of the derivative work of another.

    Thus if Trachtenberg wanted more, Trachtenberg would have to release the captured bugs into the wild and then capture any of their spawn.

    1. 7.1

      This is similar to the property rule for domesticated animals. The owner of the mother (typically) is also deemed to own the children.

      1. 7.1.1

        BTW, here is an article related to some self-replicating art work that you might find interesting link to decrypt.co

        By the way, I just finished my 1L year at Rutgers Law School in Newark and just finished taking Property myself, so I am curious, how did my answer compare?

      2. 7.1.2

        I did want to reply that while I am advocating a related outcome, it is not a traditional property right principle that I am arguing.

        I think abandonment has to prevail with respect to traditional property rights, as this is not lost or mislaid property, nor stolen. It is abandoned. So Dean Lidsky has no right to any of the bugs or there spawn once abandoned.

        The only right that I believe Dean Lidsky has is the right to prevent captured bugs from being bred in captivity, under the doctrine of copyright law, that is it.

        Dean Lidsky could potentially recover damages for any bugs bred in captivity but unless there was a copyright notice on the bugs Trachtenberg would likely be considered an innocent infringer.

        Trachtenberg has the right to own, possess, sell but not to captively breed. Note: Trachtenberg may not have the right to destroy if the bugs are either individually or collectively considered a work of art.

        The radio isotope is an interesting twist but I can’t really figure out how you might use it.

        1. 7.1.2.1

          The radio isotope is reminiscent of the Monsanto-style “marker.”

          That case (wrongly decided IMHO) indicated that progeny — even of a fully natural event (seeds, after all, have ALWAYS had the ‘replication’ factor) “are owned by” the one that ‘created’ the marker version, even if exhaustion would have effected the “parent” item in and of itself. These bots — just like Monsanto’s seeds — will propagate with the same type of “self-replication” factor.

          Now, a distinguishing point might be that for seeds, the replication at least consumes the parent — that is not a given for the bots.

    2. 7.2

      Dean Lidsky owns the rights to make derivative works… Thus… Trachtenberg cannot legally… put out parts for the bugs to self-replicate because he would be directly responsible for the creation of the derivative work of another.

      I do not think that this analysis is correct. Copyright only prevents copying. If a second artist independently creates the same work as another, that is not a copyright violation.

      It seems to me that these bugs are engaged in their own efforts, blithely unaware of Lidsky’s prior creation. This is not “copying,” and thus not a copyright violation.

      If an artist paints a pile of dog poo, the artist holds a copyright on the work. If my dog subsequently drops a pile that satisfies the “ordinary observer” (Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 66 (2d Cir. 2010)) test vis-à-vis the painting, that does not make my dog liable for infringement, because her product is an independent creation. Mutatis mutandis, the same result prevails here.

      1. 7.2.1

        @Greg Copyright applies to both copies (“replicas”) and derivative works, which are extensions from the original work. I think you would be hard pressed to say that these self replicated bugs are not derivative works.

        They were all derived from Dean Lidsky’s original creation.

        1. 7.2.1.1

          From Castle Rock Entertainment v. Carol Pub. Grp., 150 F.3d 132, 137 (2d Cir. 1998):

          “Copyright infringement is established when the owner of a valid copyright demonstrates unauthorized copying.” Repp v. Webber, 132 F.3d 882, 889 (2d Cir.1997); see Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). There are two main components of this prima facie case of infringement: “a plaintiff must first show that his work was actually copied …. [and] then must show that the copying amounts to an improper or unlawful appropriation.” Laureyssens v. Idea Group, Inc., 964 F.2d 131, 139-40 (2d Cir.1992) (quotation marks and citations omitted). Actual copying may be established “either by direct evidence of copying or by indirect evidence, including access to the copyrighted work, similarities that are probative of copying between the works, and expert testimony.” Id. at 140. As we have noted before, “probative,” rather than “substantial” similarity is the correct term in referring to the plaintiff’s initial burden of proving actual copying by indirect evidence. See Webber, 132 F.3d at 889 n. 1; Laureyssens, 964 F.2d at 140. “It is only after actual copying is established that one claiming infringement” then proceeds to demonstrate that the copying was improper or unlawful by showing that the second work bears “substantial similarity” to protected expression in the earlier work. Webber, 132 F.3d at 889; Laureyssens, 964 F.2d at 140.

          In order to be a “derivative work” of a copyrighted original, something must first be a “copy.” You are skipping past the “copy” (as opposed to second original creation) step of the analysis. I do not know how one might hope to show that the bugs are “copying,” any more than one might show that my dog had “copied.”

        2. 7.2.1.2

          I think you would be hard pressed to say that these self replicated bugs are not derivative works.

          Not that this is important to the argument that you are advancing, but in fact the F2 generation bugs are not “derivative works” of Lidsky’s original bugs. As used in the copyright context a “derivative work” is defined as “a work based upon one or more preexisting works… in which a work may be recast, transformed, or adapted.” 17 U.S.C. §§ 101, 106(2).

          If the F2 generation bugs are anything in the copyright context, they are mere “copies,” although you have yet to prove even that much. In any event, there is no argument at all to be made that they should class a “derivative work.”

          1. 7.2.1.2.1

            @Greg United States Copyright Act of 1976, 17 U.S.C. Section 101 states: A “derivative work” is a work based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work.”

            Tho requirement for a derivative work is that it needs to be “based upon” preexisting work. I don’t see the requirement that you make a copy first and then transform it.

            I will acknowledge that our dog is an independent creator.

            Dean Lidsky created the first bug so that it would recreate itself. As soon as he created the first bug he owned the copyright to it.

            When it self-replicated that was a derivative work ultimately brought into existence by Dean Lidsky. Assuming he only created one, then every other “self-replicating” bug is a derivative work of the original. The only reason he doesn’t own them all is that he abandoned them.

            1. 7.2.1.2.1.1

              The only reason he doesn’t own them all is that he abandoned them.

              Agreed.

              A “derivative work” is a work… in which a work may be recast, transformed, or adapted. (emphasis added)

              There is no “recasting,” “transformation,” or “adaptation” of Lidskey’s original in the hypo as Prof. Crouch presented it. If you imagine that the F1 generation of bugs are “recasting,” “transforming,” or “adapting” the F0 model, then you are assuming facts not in evidence.

              Prof. Crouch’s fact pattern says that “once enough parts are collected, a bug will build a replica of itself.” This “replica” is—at most—copy, not a “derivative work.” It simply confuses the issue to bring the term “derivative work” into this analysis, as the “derivative work” category really has no role to play in assessing whether there is a copyright violation going on.

              As note above, however, you cannot merely look at the similarities between the F0 model and the F1 model or F2 model (etc) and say “see, these are ‘copies.'” The copyright law distinguishes between one who “copies” an author’s work, and one who independently authors the same work.

              The one alleging infringement has the burden of proving that the alleged infringer “copied” the author’s work. If an F1 bug were in the dock, and it said “I independently authored the allegedly infringing F2 bug,” what evidence would you adduce to prove that the F1 bug had, instead, copied?

              1. 7.2.1.2.1.1.1

                Isn’t that statuary language along the lines of “makes or causes to be produced.” I am arguing that if I give a “captive” self-replicating robot the parts that it needs to produce itself, which being captive it cannot get otherwise then I will have caused a copy to be made.

                It he bugs are running around in the wild then I will not have caused it to be produced.

                I was assuming that it didn’t have to necessarily be an exact copy each time. For, instance, it might use a series of resistors to produce the same resistance, rather than using on larger resistors.

            2. 7.2.1.2.1.2

              It is the aspect of “self-replicating” that draws the Monsanto case into the conversation.

      2. 7.2.2

        Greg, I think you’re right that derivative works doesn’t apply here, but I am not even sure you even need to get to “derivative” works as you likely don’t even have copyrightable subject matter. The functional elements of mechanical designs are not subject to copyright protection, full stop.

    3. 7.3

      How does copyright law apply to a utilitarian robot?

      1. 7.3.1

        Good question — what are (if any) the “expressive elements” that any such copyright protection would be sought to be protected?

    4. 7.4

      Imagine a farmer plants a field of sunflowers. I take a camera to that field and photograph several of the sunflowers up close.

      People are very good at recognizing faces, but not especially good at recognizing sunflowers. Therefore, any given sunflower likely will satisfy the “ordinary observer” as a “derivative work” of my photos.

      Now imagine that the farmer collects the seeds that ripen from the exact sunflowers that I photographed. Next spring he scatters the same seeds on the ground to seed a new crop of sunflowers. Does the farmer—as the one who planted the crop and who owns the land on which they grow—infringe my copyright?

    5. 7.5

      I think you’re assuming that the robots or their parts contain copyrightable subject matter. That isn’t stated in the hypothetical and is not necessarily the case. For example, the robots may be controlled by the generated output of machine learning algorithm, and if I recall correctly the copyrightability of such output is not settled law. As for the parts, they may comprise things like screws and gears, which are not copyrightable.

  6. 6

    i don’t have an answer for this complicated legal scenario, but i need legal advice: my neighbor’s Landroid (robotic lawn mower) broke through his electronic barrier and mowed a swath across my front lawn and bumped against my front step, whereupon i picked it up and am planning to keep it. can i legally do that?

  7. 5

    I appreciate all of the responses, which all appears admirably well reasoned. I especially appreciate the analysis under the La. civil code, as I rarely encounter such considerations.

    I think that the patent law implications hinted in the hypo are a complete red herring to the call of the question (“[w]ho owns the bugs…?”). Patent law does not affect ownership of physical goods.

    If Sigma Aldrich manufacturers a mole of TiO2, then Sigma owns that mole, full stop. It does not matter one whit to the ownership question whether Malinkrodt’s patent on TiO2 is valid or not.

    If Malinkrodt’s patent is valid, then Sigma’s manufacturing will have infringed the patent, and Sigma will owe Malinkrodt damages. If the value of the damages happens to equal the value of the TiO2, that will be pure coincidence. More likely, the value of the damages will be less than the value of the mole of TiO2. Sigma will sell that mole to customers, not surrender it to Malinkrodt in satisfaction of the damages award.

  8. 4

    assuming he found them on his own property (not specifically stated), Trachtenberg owns them. Lidsky dispatched the bugs off of her property and so she has affectively abandoned them. Mitchel likewise has intentionally allowed the parts to be removed from his property.

  9. 3

    Louisiana lawyer here. Our Louisiana Civil code has an article on the ownership of a new thing made with materials of another. In general, “[w]hen one uses materials of another to make a new thing, the thing belongs to the owner of the materials, regardless of whether they may be given their earlier form.” La. C.C. art. 511. But there is an exception to this general rule: “when the value of the workmanship substantially exceeds that of the materials, the thing belongs to him who made it.” La. C.C. art. 511. So to answer the question of who owns the robot “bugs” that Trachtenberg captured, we might first consider who owned the materials used to make them. But since self-replicating robot bugs are likely to be worth more than the sum of their parts — that is to say, “the value of the workmanship substantially exceeds that of the materials,” especially considering Mitchell can afford to leave robot parts out for the taking — they would more likely belong to “him who made it.” And here that would be Lidsky. She made the first generation of robot bugs, and she was also responsible for the programming and other work that went into their ability to create new generations of robot bugs, too. Any manufacturing company employing robots on their assembly line will tell you that they they own the product of their robots’ labor. So, too, with Lidsky’s burgeoning army of robot bugs. As for Mitchell’s rights, we would first have to consider whether he abandoned the robot parts he left out in his yard. See La. C.C. art. 3418 (“A thing is abandoned when its owner relinquishes possession with the intent to give up ownership.”). (I will continue this answer later!)

  10. 2

    FWIW, here’s how I read the question: Nothing in the prompt suggests Dean Lidsky patented her invention. So leaving that to side for a moment, the description of the bugs—individually moving around and replicating on their own—is fairly akin to them being wild animals.

    Under common law, what happens when a wild bug wanders onto Mitchell’s yard, using materials found there, replicates, and is captured by Trachtenberg? The general rule is that ownership over resources ferae naturae is usually attached to the first to reduce the resource to one’s exclusive dominion and control (Pierson v. Post). Here, it doesn’t appear that Mitchell has reduced either the F0 or the F1 generation to Mitchell’s exclusive possession or control. Placing resources out for wild animals to use them is no different from, say, a bird feeder, whereupon common law courts would not consider the owner of the feeder to necessarily have title to the animal without some additional form of capture. Mitchell is not an owner of the bugs. By contrast, Trachtenberg has “captured” them, and capturing is generally considered to be tantamount to title over the natural resource itself. The bugs—both the F0 and F1 generation—are Trachtenberg’s.

    It matters not that Mitchell made the resources available to the bug’s disposal nor that Dean Lidsky invented them. The rule regarding ownership over offspring of animals applies only domestic animals (e.g., cattle) and only, of course, where the land-owner can demonstrate title in the original animal itself (e.g., calves birthed from owned cattle). As noted before, these appear—from the facts presented—to be wild animals. Mitchell has no defense to Trachtenberg’s claims of ownership.

    Further, there’s nothing to suggest Dean Lidsky owns the bugs, either as a matter of patent law (no patent application filed from the facts) or under any other common law principles of ownership over a resource. The bugs are Trachtenberg’s if Trachtenberg captures them—issues pertaining to trespass (not presented here and likely irrelevant, see Pierson and Garza) notwithstanding. Popov v. Hayashi was wrongly decided, is inapposite to almost every principle of common law on the issue save a rough implementation of equity, and is wholly non-analogous here.

    If Dean Lidsky had a patent covering the invention, perhaps there’s a broader question concerning infringement. And indeed, there would be many: is Mitchell’s feeder activity § 271(a) infringement under Bowman v. Monsanto? If so, is it also § 271(c) infringement under Aro II? Is Trachtenberg’s use to “study them” itself an act of infringement—or does the narrow, “purely philosophical inquiry” research exception actually apply despite Madey v. Duke University? But we leave those questions for another hypothetical.

    1. 2.1

      ^ best post on this thread.

  11. 1

    In class, we read Pierson v. Post; Popov v. Hayeshi; Moore v. Univ California; etc. We also talked some about patents & IP rights.

    1. 1.1

      (As you’ve presented this as a question in a basic property course, I assume your question doesn’t implicate patent law concepts akin to the Monsanto “seeds patent” issue.)

      The simplest answer may be Trachtenberg to the extent the bugs, legally speaking, qualify as wild animals. Under the Pierson/Post common law rule, one gains ownership over a wild animal by obtaining and maintaining dominion and control over it, either by killing or capturing it. The only person you’ve described who satisfies that criteria is Trachtenberg.

      You’ve thrown in mumbo jumbo about autonomous robots, self-replication, spare parts, etc., presumably as a fake-out. It’s not clear why, under basic property law concepts, the answer would be any different here than if Lidsky had released biological instead of mechanical bugs into the wild, who fed on plants and seeds in Mitchell’s back yard.

      1. 1.1.1

        The simplest answer (since we should recognize this as belonging to an academic context), is whatever the professor has indicated in class as “being most correct.”

        It should not be confused with any world legal answer.

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