Rothman on Custom in Intellectual Property

Legal Theory Blog: Rothman on Custom in Intellectual Property:

The treat­ment of cus­tom­ary prac­tices has been widely debated in many areas of the law, but there has been vir­tu­ally no dis­cus­sion of how cus­tom is and should be treated in the con­text of intel­lec­tual prop­erty (IP). Nevertheless, cus­toms have a pro­found impact on both de facto and de jure IP law. The unar­tic­u­lated incor­po­ra­tion of cus­tom threat­ens to swal­low up IP law, and replace it with industry-​​led IP regimes that give the pub­lic and other cre­ators more lim­ited rights to access and use intel­lec­tual prop­erty than were envi­sioned by the Constitution and Congress. This arti­cle presents a pow­er­ful cri­tique of the incor­po­ra­tion of cus­toms in IP law and pro­vides a the­o­ret­i­cal frame­work for future analy­sis of pri­vate order­ing regimes in IP. The arti­cle also pro­vides addi­tional sup­port to those who have crit­i­cized the incor­po­ra­tion of cus­tom in other fields.