PUTTING THE EQUITY BACK INTO INTELLECTUAL PROPERTY REMEDIES

Within the realm of remedies, intellectual property remedies have presented particular difficulties, and in intellectual property law, controversy has focused on remedies. Concerns about holdup in intellectual property have even begun to lead to innovations in the law of remedies itself. Many of the difficulties and controversies raging now center around remedies that are "equitable." In this Essay I argue that recovering a major function of equity--as meta-law--helps us understand these problems and to offer potential solutions. Meta-law is a higher order intervention when regular law fails, in contexts of high complexity and uncertainty, often stemming from polycentricity, conflicting rights, or opportunism. These problems are rife in intellectual property settings. An attention to meta-law can focus on potential two-sided opportunism in scenarios of possible injunctions, and a more traditional equitable framework can help frame when presumptions for injunctions are appropriate and when they should be overcome. Equity as meta-law allows us to avoid flattening the law of intellectual property remedies. Introduction 1603 I. Intellectual Property Remedies Flattened 1605 II. Flattened Frameworks for Remedies 1612 III. Equity as a Solution 1614 A. Equity as the Meta-Law of Valuation 1615 B. Injunctions and Meta-Law 1618 C. Remedies and Meta-Law 1620 Conclusion 1622