Some Reflections on Custom in the IP Universe

Volume 93

93 Va. L. Rev. Online 223
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Professor Jennifer Rothman has written a long and thoughtful article whose central thesis is that we should be cautious about using customary practices to decide intellectual property cases, especially in the copyright area. At the theoretical level, her skepticism about custom is at odds with the defense of custom that I have offered in previous writings and still defend in a wide range of tort and contractual contexts. I am grateful that the editors of the Virginia Law Review have invited this brief response, which accepts some of Professor Rothman‚Äôs main points but dissents on others. It is convenient to divide this commentary into dubious and useful customs.

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