Table of Contents

Tensions between Antitrust and Industrial Policy

D. Daniel Sokol, University of Florida - Levin College of Law, George Washington University Law School Competition Law Center

Optimal Two?Part Tariff Licensing Mechanisms

Marta San Martín, Universidad del País Vasco
Ana I. Saracho, Universidad del País Vasco

Is Music the Next Ebooks? An Antitrust Analysis of Windowing in the Music Industry

Alexa Klebanow, Columbia Journal of Law and the Arts

Copyright Trolls and the Common Law

Brad A. Greenberg, Columbia University - Law School, Yale Information Society Project

Editorial Notes

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"Tensions between Antitrust and Industrial Policy" Free Download
George Mason Law Review, 2015

D. DANIEL SOKOL, University of Florida - Levin College of Law, George Washington University Law School Competition Law Center

Sound antitrust law and policy is in tension with industrial policy. Antitrust promotes consumer welfare whereas industrial policy promotes government intervention for privileged groups or industries. Unfortunately, industrial policy seems to be alive and well both within antitrust law and policy and within a broader competition policy worldwide. This Article identifies how industrial policy impacts both antitrust and competition policy. It provides examples from the United States, Europe and China of how industrial policy has been used in antitrust. However, this Article also makes a broader claim that the overt or subtle use of industrial policy in antitrust and a broader competition policy is a global phenomenon. The United States’ experience teaches that industrial policy can be pushed to the margins in antitrust (and the failure to push such industrial policy to the margins produces economic inefficiencies). Further,successful competition advocacy can reduce the competitive distortions that industrial policy may have on of a broader competition policy more broadly.

This Article first identifies the relationship between antitrust and industrial policy. It provides examples of industrial policy in the antitrust experiences of the United States, Europe, and China. Second, the Article explores how a lack of procedural fairness in antitrust may be abused by inefficient competitors as a way to push industrial policy goals. Third, the Article demonstrates how industrial policy hurts a broader competition policy and suggests potential competition advocacy interventions on the part of antitrust authorities to limit the anticompetitive effects of such policy. The Article concludes with the suggestion that industrial policy is in fundamental tension with promoting consumer welfare and fostering long- term economic growth and should be abandoned both explicitly and implicitly extracted from the antitrust enterprise. Further, antitrust agencies should implement more competition advocacy interventions to stop the spread of industrial policy in antitrust globally.

"Optimal Two?Part Tariff Licensing Mechanisms" Fee Download
The Manchester School, Vol. 83, Issue 3, pp. 288-306, 2015

MARTA SAN MART?N, Universidad del País Vasco
ANA I. SARACHO, Universidad del País Vasco

This paper studies the optimal two?part tariff licensing contract for an internal patentee in a differentiated Cournot duopoly. We find that the type of the royalty payment, whether ad valorem or per?unit, that it is optimal for the patentee depends on the kind of goods produced in the industry, more precisely on whether they are substitutes or complements and on the degree of product differentiation. We also find that licensing always increases social welfare, although it may hurt consumers.

"Is Music the Next Ebooks? An Antitrust Analysis of Windowing in the Music Industry" 
Columbia Journal of Law & the Arts, Forthcoming

ALEXA KLEBANOW, Columbia Journal of Law and the Arts

Windowing is the act of withholding the release of content on certain services while providing exclusive access for a period of time to only one service. It involves staggering a title’s release-date, resulting in consumers having access to content at different times on different services. Windowing agreements are a form of exclusive dealings. Windowing, while widespread in the movie industry, has only recently become popular in the music industry. Windowing is now viewed as a way for artists to increase music sales, appealing to those dissatisfied with current streaming royalties. Exclusive dealings may be deemed unreasonable under the federal antitrust laws if they foreclose outlets or supplies to potential entrants, raise barriers to entry, and make it easier for firms to exploit their power. With an industry dominated by technology giant Apple and three music companies who together control 89% of global music sales, exclusive licensing agreements that enable windowing should be examined cautiously for antitrust concerns.

This Note engages in the first antitrust analysis of windowing in the music industry. It claims that windowing can have anticompetitive effects depending on the terms of the agreements and the parties involved. The Note examines the structure of the music industry and why exclusionary tactics are particularly troubling given the interdependent nature of an industry dominated by large market powers. The Note engages in an examination of the strength of section 1 and section 2 Sherman Act claims against technology giant Apple. The Note concludes by providing recommendations for how to structure windowing agreements to avoid federal antitrust law violations.

"Copyright Trolls and the Common Law" Free Download
100 Iowa Law Review Bulletin 77 (2015)

BRAD A. GREENBERG, Columbia University - Law School, Yale Information Society Project

Copyright trolls have been treated as a kind of IP boogeyman — an apocryphal malevolent occupying the realm of legal nightmares. But Matthew Sag’s important new work, "Copyright Trolling, An Empirical Study," helps bring copyright trolls out of the dark. In a way that only sharp data can, Sag’s research serves as a wakeup call to anyone who thinks that litigation trolling remains a rare and inconsequential burden on the U.S. copyright regime and federal courts.

Sag’s research draws from his database of all federal district court copyright lawsuits filed between January 1, 2001 and March 31, 2014. Within that time period, Sag focused on a form of trolling that has come to dominate the federal copyright docket — the Multi-­Defendant John Doe (“MDJD?) lawsuit — and discovered a seismic shift in the nature of copyright lawsuits. Though almost unheard of in 2001 and rare before 2010, 43% of copyright lawsuits filed in 2013 were against John Does; most of those were related to pornography. Moreover, MDJD lawsuits constituted the majority of copyright cases in “19 of the 92 federal district courts? and “in the Third, Fourth, Sixth, Seventh, Tenth, Eleventh, and D.C. Circuits in 2013.? Sag points to two key factors: the availability of statutory damages and the laxness of joinder standards in copyright infringement actions.

Indirectly, Sag also sheds light on the question of who should redress copyright trolling: Congress or courts? By placing copyright trolls within the tradition of opportunistic plaintiffs and helping quantify the MDJD form, Sag reminds us that copyright trolls have a transient nature. As I discuss below, amorphous trolling forms are best addressed through ad hoc determinations rather than per se classifications. This understanding urges a judicial approach over a legislative one.


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