Should the Law Care Why Intellectual Property Rights Have Been Asserted?

46 Pages Posted: 12 Dec 2015 Last revised: 21 Jan 2016

See all articles by Jeanne C. Fromer

Jeanne C. Fromer

New York University School of Law

Date Written: December 10, 2015


The American legal system has standard justification stories for our intellectual property systems. Copyright law exists to stimulate the creation and dissemination of creative and artistic works valued by society. Patent law does the same for scientific and technological inventions. These laws offer to creators time-limited exclusive rights to foster these valuable creations without imposing too much cost on society’s use of these creations. The intellectual property laws do so by affording rightsholders an opportunity to vindicate certain interests in their covered works — that are directly related to these laws’ purpose — vis-à-vis third parties. Yet a not insignificant number of assertions of copyright and patent rights against third parties seek not to protect these interests, but others, such as privacy, protection of ancillary markets, or mere extraction of rents without making a sufficient contribution to society. The question is whether patent and copyright laws concern themselves with and should concern themselves with why these rights have been asserted. I argue that assertions of rights with ill-fitting motivations are sufficiently worrisome that courts ought to strongly consider weighing these motivations before granting relief.

Keywords: intellectual property, IP, copyright, patent, motivation, motive

Suggested Citation

Fromer, Jeanne C., Should the Law Care Why Intellectual Property Rights Have Been Asserted? (December 10, 2015). Houston Law Review, Vol. 32, p. 549, 2015, NYU Law and Economics Research Paper No. 16-04, Available at SSRN:

Jeanne C. Fromer (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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