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Lessons for Today’s Fields of Intellectual Property and Trade from Epstein’s Insights about Private Law and History

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Richard Epstein’s work on private law emphasizes themes that have survived since ancient Roman law. This paper highlights two practical benefits that those themes can offer, to ease some flashpoints in modern debates about the interface between intellectual property (IP) and trade. Arguments grounded in private law may avoid the open-textured public policy debates between concern over too much or too little protection for IP and trade law while largely addressing the major stated concerns raised by both sides. They also can avoid many arcane doctrines in IP and trade law. Private law’s attention to business norms helped Grokster explore a modern online services’ liability for indirect IP infringement. Private law’s common-law approach to agency can similarly help address joint liability for IP infringement around modern online services after Limelight. Private law also may help address business opportunism around trade in electronic transmissions and set top boxes.

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