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November 14, 2006


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James Grimmelmann

I would expect that an environment of uncertainty would lead to over-enforcement rather than under-enforcement. It costs a design house much less to risk (ineffectively) asserting a questionable right than for a competing house to run the risk of successfully being sued for infringing the questionable right. And as for multiple overlapping uncertain rights, so much the better--the odds of winning on at least theory only go up if you get more chances to roll the dice.

So I would think one would need some additional factor besides just uncertainty--industry norms, perhaps, or the piracy paradox--to explain why the EC has seen underenforcement of the design laws on the books.

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