Intellectual property infringement has been characterized by over two hundred years of judicial opinions and scholarly writings as a socially destructive behavior akin to theft and trespassing. Modern intellectual property 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 intellectual property’s anticompetitive structure, as opposed to a normatively bad behavior.
Competition and Piracy,
32 Berkeley Tech. L.J. 775