Re: Copyright "monopolies" (was: ProCD)

> On 2/22/97, John Lederer <johnl[_at_]ibm.net> wrote:
> >
> > If one extends the government grant of monopoly by contract---why
> > doesn't one have a contract, combination or conspiracy in restraint
> > of trade?
>
> 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.

I agree with Dan - the characterization of Intellectual Property Rights as monopolies is archaic. One of my Patent Law Professor's used to say that the use of the term is the context of IP dates from 60's and 70's when most people, including the Justice Dept. didn't understand the nature of IP Rights and their benefit, "they were ignorant and it was our job to educate them"

My recollection of anti-trust law is hazy, but doesn't a monopoly require market power? Even if an organization has market power and a monopoly, that isn't necessarily bad thing unless they use that power in an unfair way to exclude competiton? I seem to remember that the possession of a patent was ruled to no long be the basis for presuming that the party had a monopoly, not a "per se" violation.

In fact, as the senior partner in my spent Monday explaining to a judge and opposing counsel, the fact you have a valid and enforceable patent does not grant you the right to make, use or sell your invention. Patents merely allow you to exclude others from doing so. If your invention treads on another's valid intellectual property right take your hat in hand and see if you can work out a cross-license. Otherwise, all you can do is sit back and wait for their patent to expire.

David F. Crosby
dcrosby[_at_]lappinkusmer.com
dcrosby[_at_]usa1.com

Regards,
David Crosby
dcrosby[_at_]usa1.com
dcrosby[_at_]lappinkusmer.com Received on Thu Feb 27 1997 - 03:42:41 GMT