The Interaction of Exhaustion and the General Law: A Reply to Duffy and Hynes

17 Pages Posted: 9 Apr 2016 Last revised: 24 Jun 2016

See all articles by Ariel Katz

Ariel Katz

University of Toronto - Faculty of Law

Aaron Perzanowski

Case Western Reserve University School of Law

Guy A. Rub

Ohio State University (OSU) - Michael E. Moritz College of Law

Date Written: April 7, 2016

Abstract

In Statutory Domain and the Commercial Law of Intellectual Property, John Duffy and Richard Hynes argue that IP exhaustion — the doctrine that limits a patentee’s or copyright holder’s control over goods in the stream of commerce — was created and functions exclusively to confine IP law within its own domain and prevent it from displacing other laws.

In this essay, we explain why we are not persuaded. A central theme in Duffy and Haynes work is the argument that the common law did not play a role in the emergence and development of exhaustion. However, we show that the evidence they offer is inconclusive, incomplete, and at times inaccurate. Close examination of early exhaustion cases paints a more complex picture that cannot be squared with the idea that exhaustion was created independently of common law principles. Next, we explain how the approach Duffy and Hynes advocate would strip exhaustion of any normative content. While we agree that exhaustion draws a line between the domain of IP law and other laws and thus prevents the former from displacing the latter, the placement of that line is far from arbitrary, and has always reflected policy considerations. Finally, we note that Duffy and Hynes’ theory oversimplifies the relationship between IP law and state law, partly because it does not fully consider federal preemption.

Keywords: copyright, intellectual property, exhaustion

Suggested Citation

Katz, Ariel and Perzanowski, Aaron and Rub, Guy A., The Interaction of Exhaustion and the General Law: A Reply to Duffy and Hynes (April 7, 2016). 102 Virginia Law Review Online 8 (2016); Ohio State Public Law Working Paper No. 340. Available at SSRN: https://ssrn.com/abstract=2760381 or http://dx.doi.org/10.2139/ssrn.2760381

Ariel Katz

University of Toronto - Faculty of Law ( email )

78 Queen's Park
Toronto, Ontario M5S 2C5
Canada
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416-978-2648 (Fax)

HOME PAGE: http://www.law.utoronto.ca/faculty/katz

Aaron Perzanowski

Case Western Reserve University School of Law ( email )

11075 East Boulevard
Cleveland, OH 44106-7148
United States

HOME PAGE: http://www.theendofownership.com

Guy A. Rub (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States

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