Competition and Piracy
54 Pages Posted: 25 Jan 2017 Last revised: 26 Apr 2018
Date Written: January 16, 2017
Intellectual property (IP) infringement has been characterized by over two hundred years of judicial opinions and scholarly writings as an antisocial behavior akin to theft and trespassing. Modern IP laws are faithful to this approach, punishing those who willfully infringe upon patent rights with treble damages and remedying acts of copyright infringement with statutory damages and, in some instances, prison time. This Article argues, however, that deterring infringement with such hyper-compensatory remedies squanders the benefits of piracy. Using an economic framework, certain acts of infringement are shown to increase society’s level of innovation and efficiency in ways that the law should — but does not currently — encourage. From a conceptual standpoint, infringement should be reframed as a rational response to IP’s anticompetitive structure, as opposed to a normatively bad behavior.
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