[A2k] The Tasini suit against the Huffington Post was dismissed

Erik Josefsson erik.hjalmar.josefsson at gmail.com
Mon Apr 2 14:06:41 PDT 2012

On 03/30/2012 11:00 PM, Jamie Love wrote:
> "The principles of equity and good conscience do not justify giving the
> plaintiffs a piece of the purchase price when they never expected to be
> paid, repeatedly agreed to the same bargain, and went into the arrangement
> with eyes wide open," the judge wrote.

Sounds like a variation on one of the themes in the Orphan Works
remuneration saga.

I've tried to simplify the "usucapio problem" like this:

    /- Lets say that I find a diamond Rolex watch on the street. I would
    of course go to the Police and register it at the lost and found
    department with the note that if the owner shows up, I'd like a
    reward, and, if the owner does not show up, I'd like to have the watch./

    /- Let's say that when I come back to the lost and found department
    after the stipulated time, it turns out that nobody came and picked
    up the watch, so I take it with me and start using it./

    /- I use it for a couple of years... until one day I meet the
    original owner of the watch and he says he'd like it back./

Now, you could argue that it is reasonable that I give back the diamond
Rolex to the original owner. I would of course be sad, but I'd say it's
a reasonable claim.

But it would not be reasonable f the re-appearing owner would also claim
that I should pay for the time I have been using the watch. That would
be outrageous.

I am not an expert, but it seems to me that this particular ownership
problem is very old. Already in Roman law there are solutions to it and
there are modern variations of usucapio laws in different fields like
acquisitive prescription, adverse possession etc.

I just wanted to say this, because I likewise find remuneration for use
prior to a rightholder's re-appearance, if not outrageous, so at least
completely incomprehensible. It's just wrong in principle.

I think this usucapio problem is at the heart of the issue whether the
TRIPS 3-step test should be applied on any OW solution. Personally I
believe that OWs is, similarly to the lost and found diamond Rolex, a
special case of property
allocation/recognition/registration/prescription. It is resolving a
detrimental situation to all parties. Therefore, you simply cannot apply
the 3-step test because there is no "normal exploitation of the watch"
and there are no ways to determine whether use "unreasonably prejudice
the legitimate interests" of the owner of the watch.

Best regards.


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