Risk Aversion and Rights Accretion in IP Law
Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory—where risk aversion again creates licensing markets, which cause further accretion of entitlements, which in turn push the gray areas even farther afield, and so on. This “doctrinal feedback” is not a result of changes in the positive law (the scholarship’s usual focus), but is instead rooted in longstanding, widely accepted doctrine and prudent behavior on the part of everyone involved. Moreover, because feedback is so ingrained in established law and practice, its various cures tend to create more problems than they solve. There exists, however, one promising solution—subtle changes in doctrine’s use of licensing information—that can keep intellectual property market-referential without making it market-reverential.