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Abuse of Intellectual Property Rights in the US and Canada Comparing Theories of Social Obligations and Abuse of Rights

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Abuse of Intellectual Property Rights in the US and Canada Comparing Theories of Social Obligations and Abuse of Rights Abuse of Intellectual Property Rights in the US and Canada Comparing Theories of Social Obligations and Abuse of Rights Abby Shepard Institute of Comparative Law McGill University, Montreal December 2015 A thesis submitted to McGill University in partial fulfillment of the requirements of the degree of Master of Laws. ©Abby Shepard, 2015 TABLE OF CONTENTS ACKNOWLEDGEMENTS .......................................................................................................... I ABSTRACT .................................................................................................................................. II RÉSUMÉ ..................................................................................................................................... III INTRODUCTION AND METHODOLOGY ............................................................................. 1 PART I: EVIDENCE OF ABUSE OF COPYRIGHT............................................................... 5 I. FORMS OF ABUSE ................................................................................................................. 5 Overstating Copyright Protection........................................................................................... 6 Paracopyright ....................................................................................................................... 11 Copyright Trolls .................................................................................................................... 14 II. CASE LAW ......................................................................................................................... 18 US Copyright Misuse Cases.................................................................................................. 19 Lasercomb....................................................................................................................................................................................... 19 Practice Management ................................................................................................................................................................ 21 Alcatel ............................................................................................................................................................................................... 22 Assessment Technologies v WIREdata .............................................................................................................................. 24 Omega v Costco ............................................................................................................................................................................. 26 Canadian Cases .................................................................................................................... 30 Voltage Pictures (TekSavvy) ................................................................................................................................................... 30 Kraft v Euro-Excellence ............................................................................................................................................................ 33 III. CONCLUSION ...................................................................................................................... 36 PART II: THEORIES OF PROPERTY AND RIGHTS IN THE COMMON LAW AND CIVIL LAW ................................................................................................................................ 38 I. COMMON LAW THEORIES OF PROPERTY ............................................................................ 38 Definitions ............................................................................................................................. 38 Two Models of Common Law Property Theory .................................................................... 39 (1) Liberal Model of Absolute Property Rights .............................................................................................................. 40 (2) Social Obligations Model of Property .......................................................................................................................... 45 II. CIVIL LAW THEORY OF ABUSE OF RIGHTS ......................................................................... 55 Introduction........................................................................................................................... 55 Criteria .................................................................................................................................. 58 A Long History of Controversy ............................................................................................. 68 III. COMPARISON OF THEORIES ................................................................................................ 77 Mentalities and Development of Two Traditions .................................................................. 78 Law and Morality .................................................................................................................. 80 IV. CONCLUSION .................................................................................................................. 83 PART III: COMMENTARIES .................................................................................................. 85 I. CASE LAW COMMENTARY ................................................................................................. 85 Echoes of Abuse of Rights in the Misuse Doctrine ............................................................... 85 II. ROLE OF SOCIAL OBLIGATIONS THEORY ........................................................................... 90 CONCLUSION ........................................................................................................................... 92 BIBLIOGRAPHY ....................................................................................................................... 95 Acknowledgements I wish to extend my deep gratitude to my supervisor, Professor and future MP LaSalle- Emard-Verdun, David Lametti, for believing in my scholarly potential and opening doors that I thought were long-since shut. I am moreover always amazed at how even a short conversation can set me back on track. I also wish to thank Angela Campbell, former Dean of Graduate Law programs, for her positive, can-do approach, catching energy and sense of enthusiasm. I’m also very grateful to the McGill Faculty of Law for the funding provided by the McGill Graduate Excellence Award. I would be remiss if I didn’t also thank Professor Pierre-Emmanuel Moyse both for leading the way in scholarship on the abuse of rights and intellectual property law, and for his inspirational IP course in 2013. It was while attending one of his lectures that all the pieces fell into place and I hatched the beginnings of my thesis topic. I could never have managed all of my responsibilities if it were not for my extraordinary husband Clément Palisson’s unflagging support in every way possible along this long, long journey. And of course, thank you to Iris and Anaïs for all the hugs and patience while Mama was working. Lastly, I wish to acknowledge and thank a few of the exceptionally strong, smart women in my life. Thank you to Leslie Welts for her stellar cheerleading and example setting. She has been an inspiration for all of my academic and career endeavours since the first day of law school. Thank you also to Ellen Bourque and Karine Eigenmann for kindly listening to the many different versions of my plans, and gently reminding me that there is always time for a coffee and a chat. i Abstract North America has been plagued by a rising incidence of abuse of intellectual property rights through litigation and other pre-trial tactics. Intellectual property law is particularly susceptible to abuses, because it is bogged down in complex, ultra-specialized legislation that inevitably lags behind technological advances and sophisticated schemes of abuse. Moreover, there is no affirmative cause of action for victims of these schemes to seek redress for abuse. This project asserts that in order to respond effectively to abuses of intellectual property rights, a flexible framework of general application is needed. The civil law theory of the abuse of rights provides an excellent model for this framework. The abuse of rights has a long history of dealing with abuses of statutorily conferred rights. It is furthermore predicated on general principles of justice and morality. By exploring these general principles and development of the abuse of rights, the scope and limits inherent to rights can be clarified. However, the role of the abuse of rights might not practicably extend beyond that of comparison, because it is foreign to the common law. A theory internal to the common law would likely gain greater acceptance. The social obligations theory is just such a theory. It shares the same goal as the abuse of rights of reinvigorating the central role of morality within the concept of the law. It is moreover reinforced and enriched through comparison to the abuse of rights and its greater experience with abuse of statutory rights. Therefore, this project claims that together, the common law social obligations theory as informed by the civilian abuse of rights theory could provide a breath of fresh air into intellectual property law, and aid in stopping abuses of intellectual property rights. ii Résumé L’Amérique du Nord
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