Perzanowski and Schultz, ‘Reconciling Intellectual and Personal Property’

Introduction:
… Part I begins by examining the relationship between intellectual and personal property. Sometimes courts have treated those rights as inseparable, as if transfer of a copy entails transfer of the intangible right, or retention of the copyright entails ongoing control over particular copies. But Congress and most courts have recognized personal and intellectual property as interests that can be transferred separately. Although the better view, this approach frequently overstates the independence of copyrights and rights in copies. Those interests interact; each helps to define the boundary of the other. The exhaustion principle, though historically associated with a clear distinction between copy and copyright, is in fact the primary tool in copyright law for mediating the somewhat indistinct line separating the copy and the work. Part II begins to outline the breakdown of this once stable equilibrium, focusing on the erosion of the notion of consumer ownership. In recent decades, courts have created two distinct regimes for resolving questions of copy ownership: one that applies to software and one that applies to everything else … (more)

Aaron Perzanowski and Jason Schultz, ‘Reconciling Intellectual and Personal Property’, Notre Dame Law Review volume 90:3 1211 (2015).

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