Kenneth Himma, ‘Toward a Lockean Moral Justification of Legal Protection of Intellectual Property’

Abstract:
In this Article, I attempt to show the legitimacy of intellectual property protection by articulating a new formulation of what I call an argument from investment. The argument proceeds in Lockean fashion by identifying something of moral significance that the content creator has invested into creating new content. I then attempt to identify morally significant interests of other people in content created by someone else. Next I attempt to weigh the comparative importance of these various moral interests, arguing that the interests of content-creator wins in at least one case — content wanted for entertainment. The two other more difficult cases I consider are content needed to survive or minimally compete in a global economy created by the affluent world and content needed by persons to thrive in all the ways that human beings ought to thrive. I then make an argument that legal protection of intellectual property is, as a matter of political morality, justified in cases of content wanted for entertainment and in many cases of content needed to thrive or flourish in morally significant ways.

Himma, Kenneth Einar, Toward a Lockean Moral Justification of Legal Protection of Intellectual Property (January 29, 2013). San Diego Law Review, Forthcoming.

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