Can Antitrust Law Stop Abuses Of Intellectual Property And Free Access To Knowledge?

from the it-would-be-a-start... dept

Thu, Aug 19th 2010 5:35am — Mike Masnick

A year ago, at the Congressional Internet Caucus' State of the Net West event, I was pleasantly surprised to hear Rep. Zoe Lofgren make the suggestion that an area that antitrust regulators should really be looking at is how copyright law is abused for anti-competitive reasons. Now, Glyn Moody points us to a new paper from Sean Flynn (who's been active in trying to get ACTA negotiators to answer questions) about how antitrust laws could be useful in stopping abuses of intellectual property law and improving access to knowledge. I'm not convinced this will actually work, but it's an interesting area that seems worth exploring.

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Filed Under: antitrust, intellectual property

12 Comments

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Nina Paley (profile), 19 Aug 2010 @ 5:48am

anti-competitive
Copyright exists for anti-competitive reasons. That's what monopoly is.

http://ninapaley.com/mimiandeunice/archives/rivalrous-vs-non-rivalrous/492
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Chris Ball (profile), 19 Aug 2010 @ 6:18am

Competition Law vs. IP
Competition law statutes generally contain exceptions for IP rights. As Nina said, copyright (and patents, industrial designs, etc.) exist precisely for anti-competitive purposes, so it wouldn't make much sense for lawmakers to allow competition law to trump IP in general. That said, competition law (at least here in Canada) is quite often used to curb IP rights; it's just not as useful as you might think, and only works in pretty extreme cases.
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Anonymous Coward, 19 Aug 2010 @ 6:40am

"Can Antitrust Law Stop Abuses Of Intellectual Property And Free Access To Knowledge?"

No, anti trust laws are designed to be abused in favor of petitioners who bribe the government (with campaign contributions) and want competitors (ie: Google) eliminated.
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Anonymous Coward, 19 Aug 2010 @ 6:44am

Re:
So your idea of supporting the military is to use them to promote your advertising campaign?
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Chris-Mouse (profile), 19 Aug 2010 @ 6:54am

I think that a big part of the problem is the lack of penalties for abusing IP Laws. The cost for a company to make the attempt to stretch the law to eliminate competition is trivial compared to the benefits of successfully eliminating the competition. If a corporation can risk only a few hundred thousand dollars in legal fees in the hopes of getting a complete monopoly on all after market support for their products, they'd be nuts not to take the chance. The only way this will ever stop is when the downside of trying and failing is much greater than the up side of trying and succeeding in stretching the law. Financial penalties would be a good start, but I'd let the judge include other penalties up to a complete loss of the IP rights involved in the case. That way the corporation ends up taking a true gamble instead of the "I may not win, but I can't lose" situation we have right now.
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Anonymous Coward, 19 Aug 2010 @ 6:58am

Antitrust Law
IP is an exception to competition law is missing the point.
Control over IP is often abused to leverage other aspects, such as refusal to supply. Which can be illegal.

Microsoft were convicted in Europe, regardless of ownership of copyright, because they used their control over the desktop to restrict interoperability with other opereating systems.

Complainant was Sun Microsystems.
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Anonymous Coward, 19 Aug 2010 @ 7:38am

Re:
and if anti trust laws were really about the consumer why don't they break up the cableco monopolies.
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Anonymous Coward, 19 Aug 2010 @ 7:47am

Antitrust laws have always been the "flip side" of IP laws, which is why those who practice in the IP area have to take such laws into account when representing their clients. Quite frankly, I have always been mystified why they are used so sparingly (i.e., virtually never) in cases of clear overreaching by rights holders...even when the rights holder does not hold a market position where it is able to monopolize a market and thereby control/manipulate prices.

The penalty when such a violation is established? Invalidation of a patent or a copyright is on the "remedy table".
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Anonymous Coward, 19 Aug 2010 @ 9:03am

Re: hello Dear,
Listen Dear, I've trademarked the term "Miss Cynthia". You are in violation of my intellectual property rights. You can pay me $75,000 for permission to continue calling yourself Miss Cynthia.
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Cathy, 19 Aug 2010 @ 9:04am

Re:
I think some of the reason anti-trust is not raised in IP cases more often is because practitioners of one area don't always know the other as well.

But that may be starting to change.
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Anonymous Coward, 19 Aug 2010 @ 10:11am

Re: Re:
In which case I would not refer to them as "practitioners" in the true sense of the word, but as "routineers/journeymen".

Every licensing agreement I have ever prepared is vetted against antitrust law to ensure compliance. The same can be said of tax law, export control law, etc. because all of them potentially impact the agreement and must be considered lest the client receive in the future a most unpleasant surprise and the lawyer the same (malpractice).
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Crosbie Fitch (profile), 14 Sep 2010 @ 2:44am

Re: anti-competitive
Yup, it's a bit like calling the police to arrest soldiers for killing people on the battlefield.

Copyright is a monopoly.

If you don't want such anti-competitive commercial privileges then abolish them. Don't be so stupid as to quibble between 'fairly anti-competitive' and 'unfairly anti-competitive'.
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