Re: Copyright "monopolies" (was: ProCD)

Dan L. Burk wrote:
>

snip
> Why do you say monopoly? Say rather "exclusive right."
>
> This may or may not be a monopoly, but I find it very difficult to
> think of circumstances where copyright would constitute a monopoly.
>
> Setting aside the situations where the statute requires compulsory
> licensing, I note that 1) independent creation is a defense, and 2)
> the price elasticity of demand should be fairly unconstrained because
> of the idea/expression doctrine.

The U.S. Courts have long recognized the doctrine of patent law abuse and misuse under antitrust law. They are slowly but surely broadening this approach to include copyright.

For example, see Lasercomb v. Reynolds, 911 F. 2d 970 (4th Cir. 1990).

In some respects, i.e. the doctrine of exhuastion, the European Court of Justice is way out in front, striking down all sorts of contractual arrangements and even national statutory provisions relating to copyright that would restrict the flow of trade within the EU.    

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Howard Knopf
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