Vol 7 No 1 - Roger Williams University School of Law

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In response to Intel’s argument that its proprietaryinformation and pre-release products are subject tocopyright and patents, the district court observed thatIntel’s intellectual property “does not confer upon it aprivilege or immunity to violate the antitrust laws.” Thatis of course correct. But it is also correct that theantitrust laws do not negate the patentee’s right toexclude others from patent property. The patent andantitrust laws are complementary, the patent systemserving to encourage invention and the bringing of newproducts to market by adjusting investment-based risk,and the antitrust laws serving to foster industrialcompetition. The patent and antitrust laws serve thepublic in different ways, both of importance to the nation.. . . .In Image Technical Services the Ninth Circuit reportedthat it had found “no reported case in which a court hadimposed antitrust liability for a unilateral refusal to sellor license a patent or copyright.” Nor have we.. . . However, as we have stated, the owner of proprietaryinformation has no obligation to provide it, whether to acompetitor, customer, or supplier. Precedent makes clearthat a customer who is dependent on a manufacturer’ssupply of a component can not on that ground force theproducer to provide it; there must also be ananticompetitive aspect invoking the Sherman Act.228The message from this case is that refusal to deal or supplyinformation/intellectual property to a competitor or consumer isnot of itself an antitrust violation. Consumers will generally havea difficult time raising successful antitrust violations, as anticompetitiveconduct in competition is an important requirement.Where the dispute involves competitors, the refusal to supply, if itamounts to anti-competitive conduct, will raise a more seriousissue. This case also confirms that the essential facility doctrinewill be of limited application and will not readily provide a right toaccess informational architecture.229228. Id. at 1662-63 (citations omitted).229. See, e.g., Trade Practices Act, 1974, Part IIIA (Austl.); Hamersley Iron Pty.Ltd. v. NCC [1999] F.C.A. 1370; Eastman Kodak Co., 504 U.S. 451; Aspen Skiing, 472
ISO and Intergraph can be contrasted with Radio TelefisEireann v. European Commission (Magill), a decision of theEuropean Court of Justice (ECJ).230 In Magill, due to the specificcopyright laws in place, television stations were able to claimcopyright in the listing of weekly programs in Ireland. Thetelevision stations published their own station specific as opposedto comprehensive weekly television guides and released daily andweekend details of programs to daily newspapers.231 Magillattempted to publish a comprehensive weekly television guide butwas enjoined from doing so on the motion of the televisionstations.232 Magill sought a declaration that in refusing to licencethe copyrighted material the stations had engaged in antitrustviolations or in European terms abused their dominant position inthe market place.233 The ECJ agreed, opining:In the present case, the conduct objected to is theappellants’ reliance on copyright conferred by nationallegislation so as to prevent Magill—or any otherundertaking having the same intention—from publishingon a weekly basis information (channel, day, time andtitle of programmes) together with commentaries andpictures obtained independently of the appellants.Among the circumstances taken into account by theU.S. 585; In re Indep. Serv. Orgs. Antitrust Litig., 203 F.3d 1322; Intergraph Corp. v.Intel Corp., 3 F. Supp. 2d 1255 (N.D. Ala. 1998), vacated by 195 F.3d 1346 (Fed. Cir.1999); Eastman Kodak Co. v. Image Technical Servs., Inc., 125 F.3d 1195 (9th Cir.1997); Data Gen. Corp. v. Grumman Sys. Support Corp., 36 F.3d 1147 (1st Cir. 1994);MCI Communications v. AT&T, 708 F.2d 1081 (7th Cir. 1983), cert. denied, 464 U.S.891 (1983); Byars v. Bluff City News Co., 609 F.2d 843 (6th Cir. 1980); Hecht v. Pro-Football Inc., 570 F.2d 982 (D.C. Cir. 1977), cert. denied, 436 U.S. 956 (1978); see alsoPhillip Areeda, Essential Facilities: An Epithet in Need of Limiting Principles, 58 ABAAntitrust L.J. 841 (1990); Allen Kezsbom & Alan Goldman, No Shortcut to AntitrustAnalysis: The Twisted Journey of the “Essential Facilities” Doctrine, 1 Colum. Bus. L.Rev. 1 (1996); David McGowan, Regulating Competition in the Information Age:Computer Software as an Essential Facility Under the Sherman Act, 18 HastingsComm. & Ent. L.J. 771 (1996); W. Greg Paciak, Essential Facilities Doctrine:Intergraph Corp. v. Intel Corp., 14 Berkeley Tech. L.J. 323 (1999).230. See Radio Telefis Eireann v. European Comm’n, 1995 E.C.R. I-743; 4 C.M.L.R.718 (1995); see also TRIPS, supra note 5, at art. 40; Inge Govaere, The Use and Abuseof Intell. Prop. Rts., in E.C. Law 3-12 (1996); Irini A. Stamatoudi, The Hidden Agendain Magill and Its Impact on New Technologies, 1 J. World Intell. Prop. 153 (1998).231. Radio Telefis, 4 C.M.L.R. at para. 3.232. Id. at para. 7.233. Id. at para. 8.
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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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of intellectual property rights mus
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Page 84 and 85: even by the plaintiffs today.86The
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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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