21 January 2012

IP Versus Antitrust



As this video clearly and cleverly explains, SOPA/PIPA is not about better defining IP laws or even about censorship.  Ultimately, SOPA/PIPA is about reducing and/or eliminating the “creative” industries’ competition.  Basically, the proposed legislation is intended to give corporations monopoly power (keep in mind that this is entirely constitutional).  This does, however, bring up an interesting conundrum:  does this legislation not violate antitrust laws?

The answer, rather obviously, is yes.  Fortunately, the question over what gets precedence in this conflict of law has already been answered by the constitution:  IP monopoly trumps antitrust.  However, now seems a good a time as ever to ask a simple question:  If competition is necessary to consumer protection (hence antitrust laws, presumably), why does this thinking not extend to IP?

4 comments:

  1. "... Already answered by the constitution"?

    That's an interesting thought. Is it because Article I Section 8's IP reference:

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries

    ... is more direct than it is on anti-trust:

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
    ?

    That's my thought, anyway. It would be nice if the court would breathe some life into the phrase "for limited times", but that's a different matter.

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  2. @Olave d'Estienne- Essentially, yes. The constitution guarantees monopolistic privileges for authors and inventors, which is immutable. The commerce clause does not in any way authorize the federal government to regulate businesses. It only authorizes the federal government to arbitrate disputes on matters of trade restrictions that arise between foreign nations and the United States, among the united states, and between the United States and the various indian tribes. As such, the monopoly rights under IP should trump antitrust considerations since antitrust laws are not authorized by the constitution and IP laws are.

    Also note that the constitution allows congress to determine the length of time that monopoly protections for IP will last. As such, whatever congress says regarding the duration of IP monopolies is constitutional.

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  3. Sounds the like the level at which to enact conventional anti-trust law is the state level.

    On the other hand, I've heard varying opinions on whether conventional anti-trust a la the Clayton Act is really effective at achieving the law's stated goal. Reducing regulations and personal income tax may be more effective.

    Certainly if a tough originalist judiciary were to start throwing out anti-trust law (or preventing its enforcement) because it oversteps the interstate commerce clause, they could do the same to consumer protection law, working conditions and wage laws, ADA, CAFE, etc. The net effect of this kind of radical originalism would almost certainly be an increase in competition.

    I'm not saying that's likely in the near future though.

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  4. @Olave- Most antitrust regulation does end up being counterproductive, but that's mostly because the theory of competition upon which anti-trust laws is based is just stupid. Just lots and lots of stupid definitions, and a complete lack of understanding about substitute goods and market breadth.

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