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Does the idea of “unfair competition” present the law with a viable alternative to thinking about the regulation of information and informational resources, independent of the traditional categories of the common law (e.g., property/tort) and the assumptions that these categories entail? In this chapter, we argue that, although the answer to that question is no, unfair competition nevertheless plays an important role in complementing the categories of property and torts as they apply to competitive settings. Specifically, unfair competition allows courts to both broaden and narrow the traditional notions of property and torts – especially as they apply to the regulation of information and intangibles – by infusing the values of fairness and ethics into business interactions characterized by rivalry and a desire to maximize one’s profits. Unfair competition law grants common law judges the discretion and flexibility needed to ensure constructive competition, on the one hand, and to thwart destructive competitive tactics, on the other. Essentially then, unfair competition functions as a safety valve or residual category that enables equity and common law courts to expand the relatively rigid rules of property and torts in appropriate cases.

It is precisely for this reason that unfair competition has historically never lent itself to easy classification. At the same time, the complementary and composite nature of unfair competition also guarantees, we believe, its long-term sustainability. Although the role of unfair competition has diminished relative to what it was in the past due to the expansion of related areas such as trademark, antitrust law, and federal preemption, rumors about the demise of unfair competition are somewhat premature. Indeed, we believe that unfair competition will continue to serve in its traditional complementary role and to provide a useful benchmark for courts in delineating the scope of property, tort, and trademark doctrine in this area.

In Part I, we discuss the evolution of unfair competition law from its origins in equity until its codification in the Restatement. In Part II, we set out to place unfair competition in the broader scheme of the common law. Specifically, we explore the role of unfair competition both as a common law structural category and as an independent normative goal within the common law. In Part III, we reflect on the future on unfair competition.


Business Organizations Law | Common Law | Law


This material has been published in "Intellectual Property and the Common Law", edited by Shyamkrishna Balganesh. This version is free to view and download for private research and study only. Not for re-distribution or re-use.