The Law and Economics of Antitrust and Intellectual Property : An Austrian Approach

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This book examines some of the notions of the complex antitrust-intellectual property interface, focusing primarily on property and dynamic economic doctrines. The extensive discussion addresses antitrust patterns of unilateral behaviour and the intellectual property (IP) institutions of patents and copyright.
The author provides an evaluation of the intricacies of antitrust and IP from a broad legal, philosophical and economic perspective. In the economic context she considers the Chicago and Austrian schools of market theory, whilst on the legal and philosophical level she explores antitrust and IP doctrines through the lenses of property, philosophy of rights and history. In this way the reader gains a deeper understanding of the antitrust and IP crossroads, an area that is growing in importance as information plays an ever-increasing role in today's markets.
This book provides a theoretical appraisal of the complex issues that arise when antitrust and IP considerations seem to be at odds with one another. It offers an alternative to the Chicago school of antitrust, and makes a contribution to the Austrian school of economics. Lawyers, industrial economists and academics working on IP, antitrust and competition will all find this to be an informative volume. It will also be a source of reference for anyone interested in philosophy of property rights.

Industry Reviews

"'This work provides a fresh and significant examination of the antitrust/intellectual property interface.' - Thomas E. Kauper, University of Michigan, US; 'Dina Kallay's work is a pathbreaking application of Austrian economics to one of the most important regulatory issues facing globalizing economies - a refreshingly novel perspective on the intersection between intellectual property and antitrust law.' - Ronald J. Mann, University of Texas School of Law, US; 'Dina Kallay develops an interesting interpretation of Austrian economics as applied to intellectual property and antitrust issues, and uses her framework creatively to examine specific cases. Those interested in the application of market-oriented ideas to these issues will find this book to be stimulating and thought-provoking'. - Randall G. Holcombe, Florida State University, US"

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Acknowledgments	p. ix
A Framework for Analysis of the Antitrust-Intellectual Property Intersection	p. 1
Introduction	p. 1
The Factual Scope of the Interface	p. 2
The Historical Context of the Antitrust-IP Cusp	p. 4
Theoretical Aspects of the Interface	p. 6
Policy Goals of the Two Institutions	p. 6
The Methodologies of the Two Institutions	p. 16
Some Thoughts about Colliding Goals and Methods	p. 25
Conclusion	p. 26
The Austrian Economics Solution and the Property Narrative	p. 38
Introduction	p. 38
The Austrian Economics View of Competition	p. 38
Austrian Economics: a Pragmatic Doctrine	p. 39
The Inherent Dynamic Nature of 'Austrian' Competition	p. 40
The Role of Entrepreneurship in Austrian Competition	p. 44
On the Fallacies of the Neoclassical Competition Model	p. 45
Notions Narrowing the IP-Antitrust Conflict	p. 48
Austrian Economics Drawing Competition and Innovation Together	p. 48
The Faults of the IP Mechanism	p. 49
The Property Narrative of the Antitrust-IP Conflict	p. 52
The Property Account of Antitrust	p. 52
The Property Account of Intellectual Property	p. 60
Implications of the Property Narrative	p. 64
Some Thoughts Arising From the Property Narratives Conflict	p. 67
The Dynamic Antitrust Analysis Model	p. 80
Introduction	p. 80
The Untold Austrian Assumptions	p. 81
Dynamic (Time) Notions	p. 84
Uncertainty (Ignorance) Notions	p. 87
Prerequisite Circumstantial Assumptions Distinguished from End Results of the Competitive Process	p. 89
The Dynamic Analysis	p. 90
Different Monopoly Concepts	p. 90
Dynamic Antitrust Analysis	p. 92
Placing the Property Narratives within the Dynamic Antitrust Paradigm	p. 103
Intellectual Property Rights	p. 104
The Antitrust Rights	p. 104
Conclusion	p. 108
Application of the Dynamic Model on Refusal to License Intellectual Property (Magill)	p. 118
Introduction	p. 119
Preliminary Notions	p. 123
Refusal to Deal versus Refusal to License	p. 123
The Distinction between Existence of an IPR and Its Exercise	p. 124
Refusal To License: the Magill Case	p. 126
Magill Case: Findings of Fact	p. 127
Magill Case: Findings of Law	p. 129
Magill Case: Dynamic Analysis	p. 133
Fitting the Dynamic Analysis into the Framework of EC Law	p. 146
Economic Dependence versus Insulation from Competition	p. 147
Advantages of Dynamic Analysis in Refusal to License Contexts	p. 149
Conclusion	p. 153
Application of the Dynamic Model in Network Industries (the Dell Case)	p. 166
Introduction	p. 166
Introducing Network Industries, their Competitive Patterns and Standards	p. 166
Existing Antitrust Jurisprudence on Network Industries	p. 169
Applicability of Antitrust Policy	p. 170
Static Market Power	p. 171
Lock-in Arguments	p. 171
Summary	p. 173
Dynamic Evaluation of the Effects of Standards on the Competitive Process	p. 173
Arguments on Pro-competitive Aspects of Standards	p. 174
Arguments on Anticompetitive Effects of Standards	p. 179
Summary	p. 182
From Theory to Practice: the Dell Case	p. 183
The Dell Case Facts	p. 183
Dell: Legal Setting of the Complaint	p. 185
The Dell Case: a Dynamic Analysis	p. 189
A Review of the FTC Dell Decision	p. 189
Dynamic Analysis of the Dell Fact Pattern	p. 191
Conclusion	p. 199
Postscript	p. 208
Bibliography	p. 210
Index	p. 239
Table of Contents provided by Rittenhouse. All Rights Reserved.

The Law and Economics of Antitrust and Intellectual Property : An Austrian Approach

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