Dueling Monologues on the Public Domain: What Digital Copyright Can Learn from Antitrust

Abstract

This article, written for the inaugural volume of the University of Cincinnati Intellectual Property and Computer Law Journal, explores the disconnect between contemporary United States intellectual property law and the often quite different consensus views of disinterested expert opinion. Questions concerning how copyright law treats the public domain (that is, uncopyrighted material) supply a lens for comparing the law as it stands with the law as scholars have suggested it should be. The ultimate goal is to understand why a quarter century of predominantly critical scholarship on intellectual property seems to have exerted such limited influence on Congress and the courts. Comparing recent copyright history with the dramatic shift in federal antitrust law that occurred during the last four decades in response to academic criticism from the law-and-economics movement, this article asks whether today’s would-be copyright reformers have anything to learn from the transformation of antitrust law.

Keywords: copyright, public domain, law reform, legal history, legal scholarship, antitrust, competition law

JEL Classification: K21, K39, O34, O38