Antitrust (sorry - anti-competitive conduct) and Copyright

Since late last year we've known that the DOJ had launched an antitrust probe into the Record Industry and the Movie Industry in relation to their ventures for distribution online. Because they are cutting out the middleman and distributing directly to the public online, and because they are creating joint ventures to do it, there's been a lot of concern about the ventures (background article here). Napster at one stage in its litigation (in February 2002) got a judge to allow discovery on the potential misuse of copyright.

Now we have the online distributor of movies - Intertainer - who has brought an antitrust action against the movie studios, alleging that the studios have used their own online movie joint venture, Movielink, to push up the price then demand for licensing their movies to rival online distributors. The Wall Street Journal reported it yesterday, 24 September 2002 (subscription site only).

One of the arguments sometimes raised in favour of expansive interpretations of intellectual property rights is that other areas of law - like consumer protection law; like competition/antitrust law - can impose external restraints on misuse of intellectual property rights, just as they impose constraints on misuse of tangible property. So we can give, the argument goes, strong protection to songs, because if the composers use those rights to batter others over the head, competition law/antitrust can stop them.
On the other hand, the relationship between antitrust and intellectual property is a very uneasy one. Intellectual property owners and lawyers bridle immediately on any mention of "copyright" or "patent" and monopoly in the same sentence ("it's not a monopoly..."), and the caselaw has been quite inconisstent at times. What's more, there's the remedy question - as we saw in the Microsoft case. Competition law remedies aren't always well tailored to intellectual property rights, perhaps because if you order someone to, for example, allow inter-operability you are redefining their property rights - not just telling them how much they can or can't charge for it.

I've long thought the relationship, at least, needs to be argued about - and sure enough, it is in the halls of academia and in conferences organised by the DOJ and FTC. Here in Australia we have the ACCC v Universal case - dealing with questions of misuse of market power in relation to copyright - a case with a particularly controversial interpretation - or rather application - of the concept of market power (boiling down to single songs, to cut a very long story short). We also have the ACCC working on intellectual property licensing guidelines, as I understand.
So, there will be more action. My guess would be we won't work it out in the short term.
watch this space.