In addition to whatever else it might do to serve the public interest, intellectual property diminishes the commons. To that extent, any particular intellectual property claim intersects the public interest and affects more than just the immediate parties. Not only does intellectual property diminish the commons, but also each of its disciplines contains an almost casually incoherent metaphysic. There is incoherence, if not at the core, at least at the critical edges of intellectual property law that is systemic and fundamental. Notwithstanding over 200 years of practice in the United States, the goal of establishing a sufficiently principled, practical and predictable set of intellectual property rules is still not satisfied. In this context the otherwise peculiar result of eBay is not only tolerable, but welcome. At the critical edge of intellectual property law where the rules seem especially odd and the distinctions particularly refined and subtle a limited remedy can limit the damage that an unmanageable intellectual property law regime can inflict on the commons against the public interest. A qualified embrace of eBay supports the public interest and provides a way out of the hall of mirrors that is modem intellectual property law, short of breaking all the mirrors and starting over.
Folsom, Thomas C.
"Truth In Intellectual Property Revisited: Embracing eBay at the Edge,"
Akron Intellectual Property Journal: Vol. 2
, Article 4.
Available at: https://ideaexchange.uakron.edu/akronintellectualproperty/vol2/iss1/4