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
defense and exploitation of the copyright grant wasmerely a pretextual business justification to maskanticompetitive conduct . . . . This is in reality asignificant departure from the First Circuit’s centralpremise that rebutting the presumption would be anuphill battle and would only be appropriate in those rarecases in which imposing antitrust liability is unlikely tofrustrate the objectives of the Copyright Act.We believe the First Circuit’s approach is moreconsistent with both the antitrust and the copyright lawsand is the standard that would most likely be followed bythe Tenth Circuit in considering the effect of Xerox’sunilateral right to refuse to license or sell copyrightedmanuals and diagnostic software on liability under theantitrust laws. We therefore reject CSU’s invitation toexamine Xerox’s subjective motivation in asserting itsright to exclude under the copyright laws for pretext, inthe absence of any evidence that the copyrights wereobtained by unlawful means or were used to gainmonopoly power beyond the statutory copyright grantedby Congress. In the absence of such definitive rebuttalevidence, Xerox’s refusal to sell or license its copyrightedworks was squarely within the rights granted byCongress to the copyright holder and did not constitute aviolation of the antitrust laws.213Both of these passages highlight the delicate interplaybetween intellectual property law, antitrust law and theconstitutionally enumerated grant of power. The ambit of thecopyright or patent is defined by the meaning of antitrust law, butantitrust law is also confined by the ambit of copyright andpatent. One may refuse access to or use of an informationalproduct or digital property, even where someone is willing to paymarket price, so long as one does not engage in anti-competitiveconduct. The questions then return to what anti-competitiveconduct means and what is the desired or legislated role ofantitrust law.Intergraph Corp. v. Intel Corp.214 is another case addressing213. Id. at 1328-29 (citations omitted).214. 195 F.3d 1346 (Fed. Cir. 1999).
efusal to deal. In that case, Intel, a manufacturer of computermicroprocessors, supplied Intergraph, an original equipmentmanufacturer (OEM), with microprocessors for their computerworkstations.215 Intel saw Intergraph as a special customer andprovided Intergraph with various special benefits, includingproprietary information and products, under non-disclosureagreements.216 Through a series of events in November 1997,Intergraph sued Intel for infringement of the certain patents thatit held.217 In this litigation, Intergraph also sought an injunctionto stop Intel from cutting off the supply of benefits toIntergraph.218 Intel opposed this motion and Intergraph amendedtheir claim to say that Intel was in violation of antitrust laws,basically on the basis that it refused to deal its information toIntergraph, even though Intergraph was suing it on other groundsfor patent infringement.219 The question was, in essence, is itlegitimate to refuse to supply someone with your informationalvalue in the face of suit by them on other grounds?The district court enjoined Intel from refusing to supplyinformation and Intel appealed, arguing that no law required it togive such special benefits, including its trade secrets, proprietaryinformation, intellectual property, pre-release products, allocationof new products and other preferences, to an entity that was suingit on charges of multiple wrongdoings.220The court noted that Intergraph and Intel operated indifferent markets and were not competitors.221 While Intel mighthold a large share of the market for microprocessors, it could notbe held liable for growing its monopoly through anti-competitiveconduct by a non-competitor or consumer.222 Intergraph alsoclaimed that Intel’s information was an essential facility and thatit should be allowed access to it.223 The essential facility doctrineprovides an obligation to deal/supply but usually relates to coretangible infrastructure, like railway lines or electricity wires. In215. Id. at 1349.216. Id. at 1350.217. Id.218. Id.219. Id.220. Intergraph Corp., 195 F.3d at 1350.221. Id. at 1352-56.222. Id. at 1353.223. Id. at 1356.
- Page 68 and 69: Theory one proposes to reward the a
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defense and exploitation <strong>of</strong> the copyright grant wasmerely a pretextual business justification to maskanticompetitive conduct . . . . This is in reality asignificant departure from the First Circuit’s centralpremise that rebutting the presumption would be anuphill battle and would only be appropriate in those rarecases in which imposing antitrust liability is unlikely t<strong>of</strong>rustrate the objectives <strong>of</strong> the Copyright Act.We believe the First Circuit’s approach is moreconsistent with both the antitrust and the copyright lawsand is the standard that would most likely be followed bythe Tenth Circuit in considering the effect <strong>of</strong> Xerox’sunilateral right to refuse to license or sell copyrightedmanuals and diagnostic s<strong>of</strong>tware on liability under theantitrust laws. We therefore reject CSU’s invitation toexamine Xerox’s subjective motivation in asserting itsright to exclude under the copyright laws for pretext, inthe absence <strong>of</strong> any evidence that the copyrights wereobtained by unlawful means or were used to gainmonopoly power beyond the statutory copyright grantedby Congress. In the absence <strong>of</strong> such definitive rebuttalevidence, Xerox’s refusal to sell or license its copyrightedworks was squarely within the rights granted byCongress to the copyright holder and did not constitute aviolation <strong>of</strong> the antitrust laws.213Both <strong>of</strong> these passages highlight the delicate interplaybetween intellectual property law, antitrust law and theconstitutionally enumerated grant <strong>of</strong> power. The ambit <strong>of</strong> thecopyright or patent is defined by the meaning <strong>of</strong> antitrust law, butantitrust law is also confined by the ambit <strong>of</strong> copyright andpatent. One may refuse access to or use <strong>of</strong> an informationalproduct or digital property, even where someone is willing to paymarket price, so long as one does not engage in anti-competitiveconduct. The questions then return to what anti-competitiveconduct means and what is the desired or legislated role <strong>of</strong>antitrust law.Intergraph Corp. v. Intel Corp.214 is another case addressing213. Id. at 1328-29 (citations omitted).214. 195 F.3d 1346 (Fed. Cir. 1999).
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