Edited by Irene Calboli and Edward Lee
Chapter 3: Exhaustion and personal property servitudes
IP owners can control how other people use objects in their lawful possession—control that would otherwise be enforced (if at all) through generally applicable bodies of contract, property, and commercial law. Exhaustion can thus properly be understood, at least in part, as helping to define the boundary between IP and these other areas of law. This boundary notion might suggest a sharp distinction between IP and the laws on the other side of the exhaustion line.1 But courts and commentators have long suggested that the exhaustion doctrine in fact owes its origins to these bodies of law. Specifically, the argument goes that exhaustion is a version of a generally applicable common law prohibition on restrictions that run with objects other than land, that is, “personal property servitudes.” This chapter revisits that claim in light of recent jurisprudence and scholarship.
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