Competition and Piracy

54 Pages Posted: 25 Jan 2017 Last revised: 5 Nov 2017

Gregory Day

Oklahoma State University - Stillwater - Spears School of Business

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.

Suggested Citation

Day, Gregory, Competition and Piracy (January 16, 2017). Berkeley Technology Law Journal, Vol. 32, No. 2, 2017. Available at SSRN:

Gregory Day (Contact Author)

Oklahoma State University - Stillwater - Spears School of Business ( email )

201 Business
Stillwater, OK 74078-0555
United States

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