Misappropriation and the Morality of Free-Riding

Michael E. Kenneally

Harvard University - Law School - Alumni

Winter 2015

Stanford Technology Law Review, Vol. 18, No. 2, p. 289, 2015

Concern about free-riding drives intellectual property law, especially its misappropriation doctrine. Freely enjoying goods that are costly to produce may be bad for society as a whole (because it weakens private incentives to create such goods) and also unfair to those who have created them (because they are not compensated for all the value they produced). In recent decades, courts in misappropriation disputes have focused exclusively on the incentives worry, believing the fairness worry yields an unbounded misappropriation doctrine that conflicts with and is preempted by copyright law.

But this view misunderstands the morality of free-riding. Whether free-riding is morally objectionable depends on the particular characteristics of the free-rider, not the fact of free-riding alone. And under copyright case law, that means the misappropriation doctrine can be based on ethics and yet not preempted. A better understanding of free-riding’s moral dimensions helps repair a now broken doctrine, and more than that shores up intellectual property law’s broader response to one of its driving concerns.

Number of Pages in PDF File: 42

Keywords: Unfair Competition, Copyright, Moral Philosophy, Free-Riding

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Date posted: August 17, 2013 ; Last revised: June 28, 2015

Suggested Citation

Kenneally, Michael E., Misappropriation and the Morality of Free-Riding (Winter 2015). Stanford Technology Law Review, Vol. 18, No. 2, p. 289, 2015 . Available at SSRN: http://ssrn.com/abstract=2310966 or http://dx.doi.org/10.2139/ssrn.2310966

Contact Information

Michael E. Kenneally (Contact Author)
Harvard University - Law School - Alumni ( email )
5163 Massachusetts Ave
Cambridge, MA 02138
United States
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