Rethinking Copyright: Property Through the Lenses of Unjust Enrichment and Unfair Competition

Intellectual Property, Competition Policy and Antitrust and Copyright and Trademark

Article Snapshot


Shyamkrishna Balganesh


University of Pennsylvania Law Review PennUmbra, Vol. 156, pp. 345-355, 2008


The author proposes an alternative to Professor Stadler’s solution to the inefficiencies of modern copyright law.

Policy Relevance

There are similarities between copyright and unfair competition that can be tapped by judges and lawmakers to produce beneficial synergies.

Main Points

  • Modern copyright law has numerous inefficiencies in its structure. This article is a response to Professor Stadler’s article, which proposes a new way of dealing with the inefficiencies.
  • Copyright law ought best be understood by thinking of it as a restriction on unfair competition that protects original works owners from competitive harm in a previously identified market.
  • Stadler argues that previously identified markets in copyrighted works should be left to Congress. This makes the restriction most often used only in the primary markets the owner usually commercializes in.
  • The author of this article agrees with Stadler’s characterization of the problem but poses a different solution. The solution involves a previously identified market as one that has a “competitive nexus” between plaintiff and defendant and a showing that defendant’s copying was reasonably foreseeable when the work was created.
  • This solution would be similar to the antitrust injury rule and would eliminate liability for action that does not unjustly enrich.
  • Such a solution would be more flexible than Stadler’s and allow the norms of unfair competition into copyright law incrementally from the court system.


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