Law Commons^™

The Questionable Use Of Custom In Intellectual Property, Jennifer E. Rothman

All Faculty Scholarship

The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (IP). Nevertheless, customs have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a powerful critique …

Why Custom Cannot Save Copyright's Fair Use Defense, Jennifer E. Rothman

All Faculty Scholarship

This article is a short reply to Richard Epstein's comments on my article, The Questionable Use of Custom in Intellectual Property, 93 Virginia Law Review 1899 (2007). In the underlying article, I critique the general preference of courts to incorporate customary practices into intellectual property law. In this reply, I disagree with Professor Epstein's claim that custom should be dispositive in some instances to determine the scope of copyright's fair use defense. Although I observe that for some individual parties various customary practices may be cost-effective, their incorporation into the law expands the scope of copyright in ways that unreasonably …

Restraints On Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Beginning with the work of Joseph Schumpeter in the 1940s and later elaborated by Robert W. Solow's work on the neoclassical growth model, economics has produced a strong consensus that the economic gains from innovation dwarf those to be had from capital accumulation and increased price competition. An important but sometimes overlooked corollary is that restraints on innovation can do far more harm to the economy than restraints on traditional output or pricing. Many practices that violate the antitrust laws are best understood as restraints on innovation rather than restraints on pricing.

While antitrust models for assessing losses that result …