Epstein’s Insights about Private Law and History for Intellectual Property and Trade of Today and Tomorrow

Richard Epstein’s work on private law emphasizes themes that have survived since Ancient Roman Law. This paper highlights two practical benefits that those themes can offer some flashpoints in modern debates about the interface between intellectual property (IP) and trade. Arguments grounded in private law may avoid the open-textured public policy debates between concern over too much or too little protection for both IP and trade law while largely addressing the major stated concerns raised by both sides. They also can avoid many arcane doctrines within both IP and trade law. Private law’s attention to business norms helped the Grokster case explore a modern on-line services’ liability for indirect IP infringement. Private law’s common law approach to agency can similarly help address joint liability for IP infringement around modern on-line services after Limelight. Private law also may help address business opportunism around trade in electronic transmissions and set top boxes