Machiavellian Intellectual Property

16 Pages Posted: 5 Oct 2015 Last revised: 13 Feb 2017

See all articles by Brian L. Frye

Brian L. Frye

University of Kentucky - College of Law; Dogecoin DAO Legal Scholarship Page; Rug Radio DAO Grifting Division

Date Written: October 3, 2015

Abstract

In his controversial essay, Faith-Based Intellectual Property, Mark Lemley argues that moral theories of intellectual property are wrong, because they are based on faith, rather than evidence. This article suggests that Lemley’s argument is controversial at least in part because it explicitly acknowledges that consequentialist and deontological theories of intellectual property rely on incompatible normative premises: consequentialist theories hold that intellectual property is justified only if it increases social welfare; deontological theories theories hold that intellectual property is justified even if it decreases social welfare. According to Berlin, the genius of Machiavelli was to recognize that when two moral theories have incompatible normative premises, societies may be forced to choose between the theories. But Berlin observed that it is possible to adopt different moral theories in different contexts. This article suggests that we can reconcile consequentialist and deontological theories of intellectual property by adopting a consequentialist public theory and deontological private theories.

Suggested Citation

Frye, Brian L., Machiavellian Intellectual Property (October 3, 2015). 78 U. Pitt. L. Rev. 1 (2016), Available at SSRN: https://ssrn.com/abstract=2669050 or http://dx.doi.org/10.2139/ssrn.2669050

Brian L. Frye (Contact Author)

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