An Ethics-Based Solution to Misappropriation's Copyright Problem
Michael E. Kenneally
Harvard University - Edmond J. Safra Center for Ethics; Harvard Law School; Harvard University - Department of Philosophy
August 15, 2013
Federal copyright law permits some unauthorized copying that the state law doctrine of misappropriation forbids. Initially, misappropriation doctrine was defended on the grounds that it prevents unfair free-riding on a competitor’s efforts, but its defenders today stress its ability to provide an incentive for producing socially valuable goods — like news — that would otherwise be underproduced. Courts now reject the ethics-based approach because they believe it supports a very broad doctrine that would conflict with and therefore be preempted by copyright. At the same time, courts believe that a purely incentives-based approach can avoid preemption in at least some cases. Both beliefs are mistaken. Misappropriation doctrine cannot avoid preemption if its sole purpose is to provide incentives, but it can avoid preemption if it is designed to prohibit unfairness. Drawing on philosophical discussions of the morality of free-riding, this article argues that an ethics-based account of the doctrine rescues it from preemption because free-riding is unfair in only a narrow range of cases.
Number of Pages in PDF File: 46
Keywords: Unfair Competition, Copyright, Moral Philosophy, Free-Ridingworking papers series
Date posted: August 17, 2013
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