5 --- STRENGHTEN --- Liability is a weaker regime than the squo --- the cp WEAKENS IP protections

Patent and copyright law rely predominantly on property rules rather than liability rules.1 While this may not seem surprising for areas of law designated as “intellectual property” (IP), it turns out that copyright and patent rely more consistently on property rules than property law itself. In designating strong rights to exclude as “property rules,” Guido Calabresi and Douglas Melamed evoked the high level of protection the law provides over ownership of tangible things, especially real property.2 The law of real property nonetheless draws on the weaker protection of liability rules in many situations. These departures from property-rule protection allow for remedial flexibility in cases where the injunctive relief and punitive damages authorized under a property rule would seem disproportionate to the defendant’s culpability or create conditions for opportunism and market failure.