Emory Law Journal

Volume 68Issue 4

More Property Rules Than Property? The Right to Exclude in Patent and Copyright

BJ Ard | 68 Emory L.J. 685 (2019)

Patent and copyright rely more consistently on property rules than property law itself. Property law relies instead on liability rules in cases where injunctive relief or punitive damages would seem disproportionate to the defendant’s culpability or create conditions for opportunism. Neither patent nor copyright provide the same leeway even though these remedies raise the same potential problems in both contexts. This Article explains why this arrangement is backwards given the greater notice failures, inexhaustibility, and importance of cumulative production for intellectual works relative to tangible property. Just as lawmakers reshaped real property law to accommodate the demands of industrial production, lawmakers should recalibrate IP law to serve the needs of intellectual production. Possibilities include a “reasonable search defense” to limit relief against infringers who operated in good faith and the adoption of compulsory licenses to deal with holdout strategies and advance other major policy objectives.

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The Uses of IP Misuse

Deepa Varadarajan | 68 Emory L.J. 739 (2019)

The equitable doctrine of misuse emerged as a tool to police intellectual property owners’ overzealous contracting and enforcement behavior. First in patent law and then in copyright, courts developed the misuse doctrine to scrutinize practices that expanded intellectual property rights in socially disadvantageous ways. In recent years, patent misuse doctrine has essentially gone the way of antitrust—narrowing its focus to a thin sliver of anticompetitive harms. Copyright misuse doctrine, however, has remained attentive to broader intellectual property policy concerns. Courts have, for example, responded to misuse arguments where a copyright owner’s licensing or enforcement behavior threatens to deter innovative activity or socially valuable speech. Although trade secret owners engage in similar practices, courts have not developed an analogous trade secret misuse doctrine. This Article takes the first close look at the justifications for introducing a trade secret misuse doctrine—and considers how copyright misuse provides a template for reform.

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Making a Business of “Residential Use”: The Short-Term-Rental Dilemma in Common-Interest Communities

Cai Roman | 68 Emory L.J. 801 (2019)

Many people are familiar with the convenience of booking a cheap weekend stay using Airbnb, VRBO, and similar home-sharing sites. But as this practice becomes more widespread, short-term rentals of fewer than thirty days are contributing to a growing number of negative externalities: Cities such as Los Angeles and New York are battling with the conversion of properties into rogue hotels that slip underneath regulation, which has led to rising rents and a shortage of affordable housing. On a smaller scale, residential communities are being pestered by a steady rotation of disruptive guests. This Comment argues that the popular common-interest community model is well-suited to regulate damaging short-term rentals. With careful planning, these communities can implement tailored and enforceable restrictions on rentals. As a stopgap, however, courts should interpret “residential use” requirements to prohibit short-term-rental activity that most closely resembles a business.

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