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A Powers-Based Approach to the Protection of Ideas


This paper explains a narrow area of U.S. law in which someone who uses or discloses a novel, original and confidential idea without the permission of its originator is said to have committed a wrong. The case law does not offer a coherent and consistent account of the nature of the originator's interest in her novel, unpublished ideas nor why the unauthorized use or disclosure of such an idea is a wrong. Some courts have cited for the source of the obligation the proprietary right originators have to their ideas, while others imply contracts or fiduciary relationships or frame the case in unjust enrichment. None of these conventional theories satisfactorily explains idea-disclosure law. Thus, although there is judicial consensus in these jurisdictions that the originator has a protected interest, theoretical foundations for this protection are uncertain.

This paper provides an account of idea-submission law that makes sense of the criteria explicit in the positive law while enabling rigorous analysis of idea-submission cases. Further, it contributes to our understanding of how the law treats confidences and the relationship people have to their ideas, a topic that has been considered mainly in other legal contexts such as the law of privacy (rights of publicity), trade secrets, and confidential relationships as well as in more remote contexts like the law of insider trading.

More generally, my account illuminates two features of private law that are deserving of greater scrutiny. First, my account of this area of law draws attention to an under-theorized category of general powers. These are legal powers that we all have in virtue of being human beings and members of a legal order. The power I argue is at work in the context of idea-submission law--the power that an originator of an idea has to control disclosure--is in this category, as are more familiar powers such as the power to acquire property, the power to contract and the power to consent to sex. While an originator's power may appear novel and perhaps even obscure, this and other general powers are in fact fundamentally constitutive of our legal personality.

Secondly, my argument that a defendant must have voluntarily received the idea to be liable to the originator's power is an instance of a more general argument about the grounds for imposing obligations in private law. Where duties are imposed only on some individuals rather than on everyone, there must be some basis for imposing obligation on one individual rather than another. In the context of positional duties (duties that attach to the occupier of a position), the duty-ower must at the very least have voluntarily assumed that position.

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