Copyright (c) 1998 Fordham Intellectual Property, Media & Entertainment Law Journal
Fordham Intellectual Property, Media & Entertainment Law Journal
ESSAY: Intractable Consent: A Legislative Solution to the Problem of the Aging Consent Decrees in United States v. ASCAP and United States v. BMI
8 Fordham Intell. Prop. Media & Ent. L.J. 733
Noel L. Hillman *
The intersection of intellectual property and antitrust presents one of the great ironies in the law. Antitrust law presumes that the advantages of monopoly are outweighed by the dangers inherent in concentrations of market power. Yet the law of intellectual property, especially copyright law, seems to presume the opposite. A monopoly is good - even one extended and protected by statute for many decades, as is copyright. In those cases where this natural tension between seemingly opposite forces ceases to exist, the danger of monopolistic malfeasance increases. Where these forces coalesce, as when a copyright owner also accomplishes unfettered market power, the results can be disastrous for consumers of products subject to intellectual property rights.
During those years when the federal government vigorously enforces the antitrust laws, consent decrees are entered into which attempt to delineate proper conduct into the future. However, such decrees may fail to anticipate how changes in technology and consumer habits alter market mechanisms and the effect the consent decree itself will have on how market actors behave. 1 Those de crees which lack any meaningful provisions for modification will remain in place, self-perpetuating, and undisturbed during those periods when the antitrust laws are not vigorously enforced. At best, they become dormant and ineffective. At worst, the decree itself becomes anti-competitive when the market it had sought to control in the past no longer exists and the market structure created by the consent decree itself favors the former "monopolist" whose behavior the consent decree ...
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