Abstract

One of the most revolutionary legal changes in the past generation has been the “propertization” of intellectual property (IP). The duration and scope of rights expand without limit, and courts and companies treat IP as absolute property, bereft of any restraints. But astonishingly, scholars have not yet recognized that propertization also can lead to the narrowing of IP. In contrast to much of the literature, which criticizes the propertization of IP, this Article takes it as a given. For the transformation is irreversible, sinking its tentacles further into public and corporate consciousness (as well as the IP laws) with each passing day and precluding the likelihood that IP will return to the prepropertization era. This Article therefore ventures onto a new path, one that follows property into unexpected briar patches of limits. The secret here is that property is not as absolute as it is often claimed to be.

After surveying fifty doctrines in property law, Professor Carrier synthesizes limits based on development, necessity, and equity. He then utilizes these limits to construct a new paradigm for IP. The paradigm facilitates the reorganization of defenses that courts currently recognize as well as a more robust set of defenses, which include (1) a new tripartite fair use doctrine in copyright law, (2) a new defense for public health emergencies and a recovered experimental use defense and reverse doctrine of equivalents in patent law, (3) a development-based limit to trademark dilution, and (4) a functional use defense for the right of publicity. By adopting the paradigm of property, IP has reopened the door to limits. Rediscovering these limits offers significant promise for the future of innovation and democracy.

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