Intellectual Property Arbitrage: How Foreign Rules Can Affect Domestic Protections

Differences in national intellectual property rules may cause economic activity to shift from one jurisdiction to another so that a higher-protection rule will be undermined by lower-protection rules of other jurisdictions. This Essay illustrates this with four examples: different rules on the enforceability of anti-reverse engineering clauses of software licenses, the protectability of bio-engineered research tools, peer-to-peer file sharing, and exceptions to anticircumvention rules. It considers several options nations may have to respond to such intellectual property arbitrage, none of which is likely to be very effective.