Misappropriation and the Morality of Free-Riding
Michael E. Kenneally
Harvard University - Edmond J. Safra Center for Ethics; Harvard Law School; Harvard University - Department of Philosophy
February 22, 2014
Stanford Technology Law Review, Vol. 18, 2014, Forthcoming
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: 45
Keywords: Unfair Competition, Copyright, Moral Philosophy, Free-RidingAccepted Paper Series
Date posted: August 17, 2013 ; Last revised: May 15, 2014
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