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In general, sound general principles of contract law should carry over more or less seamlessly to the licensing of intellectual property. Those basic principles caution against attacks on standard form contracts that often contain liquidated damage provisions. This paper shows why over a broad range of cases involving two or more parties these liquidated provisions, properly calibrated, avoid the many disadvantages of using the theory of “efficient breach” to set damages. Chief among these difficulties are the high administrative costs of finding these damages, and the perverse incentives that they place on the defendant before breach and the plaintiff afterwards. Intellectual property licenses are not exempt from these basic principles, which implies that these clear damage rules are typically optimal in first avoiding breach and then in resolving post-breach disputes.

european review of contract law

Intellectual Property and the Law of Contract: The Case Against ‘Efficient Breach’  I would like to thank Thomas Coyle and Mikayla Consalvo, New York University Law School, Class of 2015 for their valuable research assistance. I also want to thank the members of the NYU law and economics workshop for their helpful comments on an earlier draft of the paper.