CITATION: 54 Duke L. J. 1 CABINING INTELLECTUAL PROPERTY THROUGH A PROPERTY PARADIGM by MICHAEL A. CARRIER Full Text HERE
Professor Carrier is no stranger to litigation. He clerked at the Fourth Circuit Court of Appeals and was a litigator at Covington & Burling. He now teaches intellectual property, antitrust and property law at Rutgers and recently published with Oxford Press “Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law.”
For copyright and IP litigators, the genius of the 2004 Carrier Cabining Article, all 700 plus footnotes notwithstanding, is that it helps us understand how to tame the relenless IP property paradigm with cogent arguments articulating how and why all property rights in all legal disciplines, physical and intellectual, can and must be circumscribed.
Carrier explains that property rights are never absolute, and that ownership always comes with limitations. Consider how an attorney may craft a fair use defense argument based on the power of these organized factual/legal observations:
“Many of the drawbacks of exclusionary rights in property law have been avoided by the widespread use of defenses to property rights. Eminent domain precludes individual landowners from holding out and preventing the government from utilizing land that it needs to effectuate certain public policies. Easements allow landlocked owners to leave their land and access public roads. Courts refuse to enforce racial covenants. Adverse possession allows developers of land to reap the rewards of their productivity at the expense of those who let land lie idle (emphasis added) .”
And if the title word “Cabined” is at first blush obstuse, here is one Carrier statement of his premise, which will assist litigators in organizing legal memorandum and talking point arguments:
“Property rights are not absolute, but are cabined by several important limits. The foundational rights of property law are widely recognized to consist of the right to exclude, the right to transfer, and the right to use. Among these rights, the right to exclude is considered the most important.The right to transfer allows the conveyance of property to those who can use it most productively. And the right to use envelops not only use but also other rights that sometimes are considered separately, such as rights of access, extraction, and management.”
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