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Article
Machiavellian Intellectual Property
University of Pittsburgh Law Review
  • Brian L. Frye, University of Kentucky College of Law
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 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.
Document Type
Article
Publication Date
10-1-2016
Notes/Citation Information

Brian L. Frye, Machiavellian Intellectual Property, 78 Univ. of Pittsburgh L. Rev. 1 (2016).

Digital Object Identifier (DOI)
10.5195/lawreview.2016.423
Citation Information
Brian L. Frye. "Machiavellian Intellectual Property" University of Pittsburgh Law Review Vol. 78 Iss. 1 (2016) p. 1 - 15
Available at: http://works.bepress.com/brian_l_frye/21/