Innovation and Competition Policy, Ch. 10 (2d ed): Post-Sale and Related Distribution Restraints Involving IP Rights
Cases and Materials on Innovation and Competition Policy, Chapter 10, 2013
54 Pages Posted: 27 Oct 2011 Last revised: 19 May 2013
Date Written: May 19, 2013
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses this casebook for a three-unit class in Innovation and Competition Policy taught at the University of Iowa College of Law and available to first year law students as an elective.
This document is Chapter Ten, which deals with vertical contractual restraints and the first-sale (exhaustion) doctrine. Two decisions from the Oct. 2012 term have been added as principal cases. One is the Supreme Court's decision in Kirtsaeng v. John Wiley, dealing with copyright exhaustion and goods covered by U.S. copyright but manufactured abroad. The other is Bowman v. Monsanto, which considers whether the first sale doctrine applies to self-replicating technologies, in this case a genetically altered seed. Relatedly we include a note on the European Court of Justice's "first download" doctrine, creating protections equivalent to those of the first sale doctrine but for downloaded software.
Keywords: patents, copyright, first sale, exhaustion, vertical restraints, resale price maintenance, antitrust, field of use restrictions, Kirtseang, first download
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