Damages for Unlicensed Use

23 Pages Posted: 18 Sep 2010 Last revised: 21 Dec 2016

See all articles by Omri Ben-Shahar

Omri Ben-Shahar

University of Chicago Law School

Date Written: September 15, 2010


This article investigates the distinction between breach of license and infringement of property rights, and how damages ought to be measured for each. It identifies two remedial puzzles. First, under current law the line between breach of a license contract and infringement of a property right is murky, and thus minor differences between violations could lead to major differences in damage measures. Second, damages for infringement are augmented in a subtle but distortive way, by giving owners an option to choose between the greater of two computation measures, each based on different information. The article argues that these existing remedial patterns are not justified. If provides an alternative framework for determining whether a violation is breach or infringement. In a nutshell, violations involving activities that an owner would want to license in a separate transaction, or not to license at all, should be regarded as infringements and sanctioned more severely.

Suggested Citation

Ben-Shahar, Omri, Damages for Unlicensed Use (September 15, 2010). University of Chicago Law Review, Vol. 78, No. 1, 2011, Available at SSRN: https://ssrn.com/abstract=1677667 or http://dx.doi.org/10.2139/ssrn.1677667

Omri Ben-Shahar (Contact Author)

University of Chicago Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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