"Anyone interested in the intersection of antitrust and regulation (whether telecommunications, IP, or environmental) should read Herbert Hovenkamp's article "Antitrust and the Regulatory Enterprise," published at 2004 Columbia Business Law Review 335 (2004). Professor Hovenkamp addresses several issues I would like to touch on through my posts here and is directly on point to Monday's post on Trinko.

"First of all, Professor Hovenkamp makes the often ignored point that intellectual property is a form of regulation:

"'[W]hile extreme free marketers might rail at the excesses of regulation or antitrust, they tend to accept the system of intellectual property ("IP") rights as if it were handed from a mountaintop. In fact, however, the existing IP system is a very elaborate effort to correct a market failure, in this case free riding that occurs when innovations are too freely copied, and the corresponding decrease in the incentive to innovate. Anyone who does not believe that the IP laws are a form of regulation has not read the Patent, Lanham, or Copyright Acts and the maze of technical rules promulgated under them. To be sure, IP laws create property rights. But so do state created exclusive franchises and filed tariffs. In fact, the detailed regulatory regimes that we call the IP laws are filled with very rough guesses about the optimal scope of protection-- ranging from the duration of patents and copyrights to the scope of patent claims and fair use of copyrighted material.' "

"Anyone interested in the intersection of antitrust and regulation (whether telecommunications, IP, or environmental) should read Herbert Hovenkamp's article "Antitrust and the Regulatory Enterprise," published at 2004 Columbia Business Law Review 335 (2004). Professor Hovenkamp addresses several issues I would like to touch on through my posts here and is directly on point to Monday's post on Trinko.

"First of all, Professor Hovenkamp makes the often ignored point that intellectual property is a form of regulation:

"'[W]hile extreme free marketers might rail at the excesses of regulation or antitrust, they tend to accept the system of intellectual property ("IP") rights as if it were handed from a mountaintop. In fact, however, the existing IP system is a very elaborate effort to correct a market failure, in this case free riding that occurs when innovations are too freely copied, and the corresponding decrease in the incentive to innovate. Anyone who does not believe that the IP laws are a form of regulation has not read the Patent, Lanham, or Copyright Acts and the maze of technical rules promulgated under them. To be sure, IP laws create property rights. But so do state created exclusive franchises and filed tariffs. In fact, the detailed regulatory regimes that we call the IP laws are filled with very rough guesses about the optimal scope of protection-- ranging from the duration of patents and copyrights to the scope of patent claims and fair use of copyrighted material.' "