Vol 7 No 1 - Roger Williams University School of Law
Vol 7 No 1 - Roger Williams University School of Law Vol 7 No 1 - Roger Williams University School of Law
motivating force.While antitrust or competition law may be seen by many tonow rest in the lap of economic analysis, there can be little doubtthat growing proprietary rights in digital architecture, such assoftware, which forms the basis of modern communication (formand content), are demanding that a diversity of communicationpathways be opened.195 The role of antitrust law in ensuringdiversity of information and knowledge (in the mould of the FirstAmendment) is clearly articulated in the following passage fromthe Associated Press case:The First Amendment, far from providing an argumentagainst application of the Sherman Act, here providespowerful reasons to the contrary. That Amendment restson the assumption that the widest possible disseminationof information from diverse and antagonistic sources isessential to the welfare of the public, that a free press is acondition of a free society. Surely a command that thegovernment itself shall not impede the free flow of ideasdoes not afford non-governmental combinations a refugeif they impose restraints upon that constitutionallyguaranteed freedom. Freedom to publish means freedomfor all and not for some. Freedom to publish isguaranteed by the Constitution, but freedom to combineto keep others from publishing is not. Freedom of thepress from governmental interference under the FirstAmendment does not sanction repression of that freedomby private interests.196This passage, which some might suggest is outdated and othersmight characterise as timeless, highlights that welfare of thepublic is a social and not just an economic issue and that private195. See, e.g., Microsoft, 87 F. Supp. 2d 30; Melway Publishing Pty. Ltd. v. RobertHicks Pty. Ltd. [2001] H.C.A. 13 (Austl.).196. Associated Press v. United States, 326 U.S. 1, 20 (1945); see also UnitedStates v. Associated Press, 52 F. Supp. 362, 372 (S.D.N.Y. 1943). There, the districtcourt stated:Id.That interest [of the news industry to present a diversity of opinion] is closelyakin to, if indeed it is not the same as, the interest protected by the FirstAmendment; it presupposes that right conclusions are more likely to begathered out of a multitude of tongues, than through any kind ofauthoritative selection. To many this is, and always will be, folly: but wehave staked upon it our all.
corporations in their exercise of power are subject to constitutionallike principles (another aspect of the notion of digitalconstitutionalism) of diversity rooted in antitrust law. Here liesan extremely important point. Access and user rights to—consumption of—information and the ensuing construction ofknowledge should never be the domain of one entity, public orprivate. Competition law has the potential to implement such aprinciple and, if it is invoked in this manner, it will be central tothe definition of digital property.1. “Refusal to Deal”One of the crucial issues that does much to define the scope ofdigital property is the extent to which someone can refuse tosupply their property to a particular customer. This issue isusually much more delicate where the supplier has an intellectualproperty right (copyright or patent) to enforce the refusal tosupply. In an environment where private corporations are makingthe highways and languages of the digital world, it becomesfrightening to think they have the power to refuse entry to digitaldiscourse.“Refusal to deal”197 has been considered in a number ofcases.198 In essence, it means that the supplier wishes todiscriminate against a particular purchaser, normally for strategicbusiness reasons, but also potentially for discrimination on thebasis of ideology. Generally, as a matter of contract law, we canrefuse to sell tangible property to someone so long as we do notinfringe discrimination laws concerning things such as race, sexand religion. That kind of strategic business discrimination isgenerally seen as part of the ethical cycle of business, and isconfirmed in Melway Publishing Pty. Ltd. v. Robert Hicks Pty.Ltd.199 However, there is a fine line as to when this becomes197. That is, the right to refuse to sell a product to someone.198. Compare Otter Tail Power Co. v. United States, 410 U.S. 366 (1973) (statingthat in terms of non-intellectual property protected products in a continuingrelationship, refusal to sell may be an antitrust violation) and Aspen Skiing Co. v.Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) with Intergraph Corp. v. IntelCorp., 195 F.3d 1346, 1362 (Fed. Cir. 1999) (stating that a refusal to license a patent orsell a patented item without more could not be an antitrust violation) and In re Indep.Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1329 (Fed. Cir. 2000); cf., Image TechnicalServ., Inc. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir. 1997) (holding that such arefusal may be an antitrust violation).199. [2001] H.C.A. 13(Austl.).
- Page 62 and 63: patent law is the utilitarian ethic
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- Page 68 and 69: Theory one proposes to reward the a
- Page 70 and 71: of intellectual property rights mus
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- Page 74 and 75: emedies set forth in section 1406.T
- Page 76 and 77: eproduced, though there be no ingen
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- Page 80 and 81: with respect to “patents of inven
- Page 82 and 83: Because, in part of the joint reaso
- Page 84 and 85: even by the plaintiffs today.86The
- Page 86 and 87: statute: the “Limited Times” re
- Page 88 and 89: head of power. It is not clear whet
- Page 90 and 91: elationship of power between the Co
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- Page 98 and 99: negative pregnant that suggests tha
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- Page 102 and 103: gave incentive for people to expres
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- Page 110 and 111: that a monopolist should not seek t
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- Page 118 and 119: defense and exploitation of the cop
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- Page 122 and 123: In response to Intel’s argument t
- Page 124 and 125: Court of First Instance in concludi
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- Page 128 and 129: as a digital property owner, which
- Page 130 and 131: anti-competitive use of monopoly po
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- Page 138 and 139: circumventing a TPM in order to loo
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- Page 144 and 145: anner advertisement company DoubleC
- Page 146 and 147: the subject. Demographic informatio
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- Page 150 and 151: information rights and legislated c
- Page 152 and 153: this value is difficult to apportio
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- Page 158 and 159: implemented. As this section will h
- Page 160 and 161: ight. First sale is an important di
corporations in their exercise <strong>of</strong> power are subject to constitutionallike principles (another aspect <strong>of</strong> the notion <strong>of</strong> digitalconstitutionalism) <strong>of</strong> diversity rooted in antitrust law. Here liesan extremely important point. Access and user rights to—consumption <strong>of</strong>—information and the ensuing construction <strong>of</strong>knowledge should never be the domain <strong>of</strong> one entity, public orprivate. Competition law has the potential to implement such aprinciple and, if it is invoked in this manner, it will be central tothe definition <strong>of</strong> digital property.1. “Refusal to Deal”One <strong>of</strong> the crucial issues that does much to define the scope <strong>of</strong>digital property is the extent to which someone can refuse tosupply their property to a particular customer. This issue isusually much more delicate where the supplier has an intellectualproperty right (copyright or patent) to enforce the refusal tosupply. In an environment where private corporations are makingthe highways and languages <strong>of</strong> the digital world, it becomesfrightening to think they have the power to refuse entry to digitaldiscourse.“Refusal to deal”197 has been considered in a number <strong>of</strong>cases.198 In essence, it means that the supplier wishes todiscriminate against a particular purchaser, normally for strategicbusiness reasons, but also potentially for discrimination on thebasis <strong>of</strong> ideology. Generally, as a matter <strong>of</strong> contract law, we canrefuse to sell tangible property to someone so long as we do notinfringe discrimination laws concerning things such as race, sexand religion. That kind <strong>of</strong> strategic business discrimination isgenerally seen as part <strong>of</strong> the ethical cycle <strong>of</strong> business, and isconfirmed in Melway Publishing Pty. Ltd. v. Robert Hicks Pty.Ltd.199 However, there is a fine line as to when this becomes197. That is, the right to refuse to sell a product to someone.198. Compare Otter Tail Power Co. v. United States, 410 U.S. 366 (1973) (statingthat in terms <strong>of</strong> non-intellectual property protected products in a continuingrelationship, refusal to sell may be an antitrust violation) and Aspen Skiing Co. v.Aspen Highlands Skiing Corp., 472 U.S. 585 (1985) with Intergraph Corp. v. IntelCorp., 195 F.3d 1346, 1362 (Fed. Cir. 1999) (stating that a refusal to license a patent orsell a patented item without more could not be an antitrust violation) and In re Indep.Serv. Orgs. Antitrust Litig., 203 F.3d 1322, 1329 (Fed. Cir. 2000); cf., Image TechnicalServ., Inc. v. Eastman Kodak Co., 125 F.3d 1195 (9th Cir. 1997) (holding that such arefusal may be an antitrust violation).199. [2001] H.C.A. 13(Austl.).
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