Vol 7 No 1 - Roger Williams University School of Law

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the information age there have been a number of claims that coreinfrastructure of the information society is an essential facilityand cannot be closed off from use.224The court explained the notion of an essential facility asfollows:The “essential facility” theory of Sherman Act violationstems from United States v. Terminal RR Ass’n, whereina group of railroads formed an association that controlledthe railroad terminals, bridges, and switching yardsserving the City of St. Louis. The Court held that thisassociation was formed for an anticompetitive purpose,that the railroad terminals, bridges, and yards werefacilities essential to competing railroads, and thatsection 1 of the Sherman Act was violated.The district court found that “the Advance ChipsSamples and advance design and technical informationare essential products and information necessary forIntergraph to compete in its markets.” Reasoning that“[t]he antitrust laws impose on firms controlling anessential facility the obligation to make the facilityavailable on non-discriminatory terms,” the court heldthat Intel’s action in withdrawing these benefits violatedthe Sherman Act. As authority the district court citedOtter Tail Power Co. v. United States and MCICommunications Corp. v. American Telephone &Telegraph Co.. . . .In MCI Communications, the court enumerated theelements of liability under the “essential facilities” theoryas “(1) control of the essential facility by a monopolist; (2)a competitor’s inability practically or reasonably toduplicate the essential facility; (3) the denial of the use ofthe facility to a competitor; and (4) the feasibility ofproviding the facility.” The courts have well understoodthat the essential facility theory is not an invitation to224. See eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058 (N.D. Cal. 2000);Cyber Promotions, Inc. v. Am. Online, Inc., 948 F. Supp. 436 (E.D. Pa. 1996);Compuserve, Inc. v. Cyber Promotions, Inc., 962 F. Supp. 1015 (S.D. Ohio 1997).
demand access to the property or privileges of another, onpain of antitrust penalties and compulsion; thus thecourts have required anticompetitive action by amonopolist that is intended to “eliminate competition inthe downstream market.”225Ultimately, the court concluded this was not an essential facilityscenario as Intel and Intergraph were not competitors and thenmoved on to reject the notion that Intel had done something wrongin refusing to supply its informational products to Intergraph:Other than as a remedy for illegal acts, the antitrust lawsdo not compel a company to do business with anyone—customer, supplier, or competitor.. . . [I]t is well established that “in the absence of anypurpose to create or maintain a monopoly, the [Sherman]act does not restrict the long recognized right of a traderor manufacturer engaged in an entirely private business,freely to exercise his own independent discretion as toparties with whom he will deal.”. . . .A “refusal to deal” may raise antitrust concerns when therefusal is directed against competition and the purpose isto create, maintain, or . . . enlarge a monopoly. Forexample, in Lorain Journal Co. v. United States, the onlynewspaper in town refused to sell newspaper advertisingto persons who also advertised on a competing radiostation; this was held to be an attempt to . . . monopolizethe mass dissemination of all news and advertising, andto violate the Sherman Act.226Claims of leveraging (using monopoly power to gain a competitiveadvantage in another market through illegitimate conduct),coercive reciprocity and tying (based on the allegation that Intelwould supply the information if Intergraph settled the law suit)were also rejected by the court.227Finally, the court more closely considered the issue ofintellectual property rights. The court explained:225. Intergraph Corp., 195 F.3d at 1356-57 (citations omitted).226. Id. at 1357-58 (citations omitted).227. Id. at 1359-60.
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ROGER WILLIAMS UNIVERSITYLAW REVIEW
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ROGER WILLIAMS UNIVERSITYSCHOOL OF
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Identification StatementThe Roger W
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contract exclusion or disclaimer of
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and other laws of countries in whic
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Symposium and writes on this issue
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Indeed, the quotation contains the
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suggestive of a bill designed merel
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United States ought to adopt in lig
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the Supreme Court to reiterate in F
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United States Supreme Court quoted
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copying of “a work protected unde
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shall be null and void.65 Member st
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determining the fate of database pr
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The compilation of a database requi
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management information, including c
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one congressional witness noted:
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that were made after the initial te
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preferred language of many business
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the sui generis right mainly serves
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the Paris Convention for the Protec
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directly or indirectly.159 In other
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of resources that qualifies that po
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wish to encourage private lawsuits,
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contract.”185 While section 1405(
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The Directive will inevitably drive
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the process through which digital p
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the United States or the trade and
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patent law is the utilitarian ethic
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a work to be publicly identified as
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the United States, the power of the
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Theory one proposes to reward the a
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Page 122 and 123: In response to Intel’s argument t
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as “high-speed telecommunications
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decrease innovation.30 On the other
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could be called a trespass, since a
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inform what permissible access and
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Universal Music Group uses software
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Taking UCITA on the Road: WhatLesso
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the debate has centered on whether
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It is against this background that
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similarities as well as differences
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as well, such as the American Bar A
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American Law Institute refused to p
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enactment of the draft. This led to
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such application.35 To the extent,
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transactions involving goods other
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quite controversial.49 As the histo
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provisions of Article 2 (based in p
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form license of information.63 Alth
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principles articulated in several i
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to by industry groups, with the res
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powers going well beyond the UNIDRO
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Contracts deals with unfair terms i
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worth a thousand words. Picture a d
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types of provisions being sought by
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law is a complex one.125 Although s
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the intellectual property balance o
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Other Substantive IssuesThere are,
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law,153 and many of UCITA’s provi
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nature of law-making both domestica
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Transactions Act).
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acts of copyright infringement.7 Un
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these rights.I. ISP LIABILITY FOR T
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Cubby, the court in Stratton Oakmon
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liability for third-party content.5
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network and removed the edition of
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subscribers’ conversations.84 Fur
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holder.92 Contributory liability ap
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and Klemesrud on the counts of dire
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eport, the White Paper on Intellect
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imposed ISP liability both in insta
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any infringing material either upon
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provider liability, the European Co
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of a defamatory statement.While saf
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defamation.184 One case that illust
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material that appears questionable
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FBI’s Carnivore: Is the Governmen
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and the legal limits of government
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II. CONSTITUTIONAL ANALYSISA. Const
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application developed in Katz v. Un
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Amendment protections.50Substantial
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communicating over the Internet pos
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court will likely, as it has often
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unconstitutional.81 Although CALEA
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data attributable to the target sus
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FBI facility for subsequent examina
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EPCA Section 2518 provides that upo
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The FBI has stated that its use of
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provision,143 but judging from the
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