Vol 7 No 1 - Roger Williams University School of Law

eing the ultimate criterion.187 The economic efficiency approachat points seems to ignore political and social aspects of themarket.188 In Australia, section 2 of the Trade Practices Actprovides: “The object of this Act is to enhance the welfare ofAustralians through the promotion of competition and fair tradingand provision for consumer protection.”189David McGowan has recently written190 about the competingrationales of U.S. antitrust law in light of the Microsoft191decision. He ponders whether the decision is really aboutguaranteeing the existence of smaller firms and competition in themarket place or whether it is about total economic efficiencyanalysed through producer and consumer equations and evidencedin optimal costs and pricing.192 He argues that Judge Jackson inthe Microsoft case seemed to want to invoke both notions.193 Hequestions whether “innovation,” as invoked in antitrust reasoning,is a pursuit of many small players in the market or the pursuit ofbest possible outcomes in terms of economic welfare.194So what is it that we really want from antitrust law—diversity or optimal consumer welfare? The two are notnecessarily congruent. If we choose diversity as the touchstone,the exploitation of intellectual property rights will be defined inthis light and we may see courts more willing to facilitate abroader range of access to informational products than we wouldunder an economic efficiency approach. And if we marry a culturaltheory of intellectual property law with a cultural theory ofantitrust law, we are almost certain to see differently constructeddigital property rights than if economic theory were the187. See Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis ofAntitrust Principles and Their Application, 8-11, 51-57, 94-137 (2d ed. 2000) (calling fora multi-dimensional approach, yet arguing for the primary importance of consumerwelfare over rivalry of small business—although economic theory is said to be limited);Robert H. Bork, The Antitrust Paradox 15-134 (1978).188. See United States v. Aluminum Co. of Am., 148 F. 2d 416, 428-29 (2d Cir.1945); United States v. Associated Press, 52 F. Supp. 362, 370-72 (S.D.N.Y. 1943); seealso Areeda & Hovenkamp, supra note 187, at 97-115; Bork, supra note 187, at 50-56;Louis B. Schwartz, “Justice” and Other Non Economic Goals of Antitrust, 127 U. Pa. L.Rev. 1076 (1979).189. Trade Practices Act, 1974, § 46.190. See McGowan, supra note 185.191. United States v. Microsoft Corp., 87 F. Supp. 2d 30 (D.D.C. 2000).192. See McGowan, supra note 185, at 766-76.193. Id.194. Id.