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Comments, In the Matter of Certain Carbon and Steel Alloy Products, ITC

Regulatory Comments "A cornerstone of the Initial Determination is that “[u]nder TianRui, the Commission’s discretion cannot be exercised in a way that conflicts with applicable federal law,”1 and, therefore, that “the dispute between U.S. Steel and Respondents in this case must be resolved using the same substantive law that governs federal antitrust cases.”

Summary

“A cornerstone of the Initial Determination is that “[u]nder TianRui, the Commission’s discretion cannot be exercised in a way that conflicts with applicable federal law,”1 and, therefore, that “the dispute between U.S. Steel and Respondents in this case must be resolved using the same substantive law that governs federal antitrust cases.” But this conclusion misreads TianRui’s holding, and is misapplied here.

Moreover, because adjudicative process at the ITC, available remedies, and the statutory objectives of Section 337 are substantially different than Article III processes, remedies, and the aims of the antitrust laws when adjudicated in Article III courts, the unmodified importation of standing rules from Article III courts to the ITC is improper.

Finally, the end to which trade laws are directed is not necessarily, or not solely, consumer welfare in an antitrust sense, and a protection of domestic injury — effectively the opposite of what’s required for antitrust standing under the antitrust laws in Article III courts — may be perfectly actionable under Section 337. As Section 337 is a standalone statute, the importation of antitrust rules can be effected only to the extent that such importation furthers the objectives of Section 337 — and certainly not in a way that would contravene them…”

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Antitrust & Consumer Protection

Policy Response, First Proposal on Copyright Reform

Written Testimonies & Filings "Given the importance of copyright protection to the US national interest, including from an economic, political and social perspective (on which, please see our response to the Register’s request for comments, attached), we strongly agree with the proposal set forth by the Committee to reform the Copyright Office..."

Summary

“Given the importance of copyright protection to the US national interest, including from an economic, political and social perspective (on which, please see our response to the Register’s request for comments, attached), we strongly agree with the proposal set forth by the Committee to reform the Copyright Office.

First, we agree with the Committee that in order to best advance the interests of the United States — “to meet the needs of a modern 21st Century copyright system” — the Copyright Office should be established as a stand-alone office in the legislative branch, and that the Register be nominated and subject to confirmation by Congress. As will undoubtedly be articulated in other submissions, the establishment of the Copyright Office within the Library of Congress was largely an accident of history related to the deposit of copies and the Library collection. But there is little reason to continue the status quo in an environment of constant change when it no longer best serves the interests of the nation. For much of our history, while there may have been the potential for some conflict between the objectives of the Library and those of the Copyright Office, they tended to be minimal, and largely to be avoided by the Library’s general deference to the Copyright Office in matters affecting copyright policy.

As will undoubtedly be articulated in other submissions, the establishment of the Copyright Office within the Library of Congress was largely an accident of history
related to the deposit of copies and the Library collection. But there is little reason to continue the status quo in an environment of constant change when it no longer best serves the interests of the nation. For much of our history, while there may have been the potential for some conflict between the objectives of the Library and those of the Copyright Office, they tended to be minimal, and largely to be avoided by the Library’s general deference to the Copyright Office in matters affecting copyright policy.

In the current digital environment, however, the intersections and points of conflict between Library priorities focused on preservation and access, and Copyright Office priorities of encouraging and protecting creativity, have grown more frequent and more fundamental….”

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Intellectual Property & Licensing

Two tech issues the Trump administration should prioritize

Popular Media Many tech policy questions remain as we prepare to greet our new President. It’s impossible to know what the tech priorities will be before they . . .

Many tech policy questions remain as we prepare to greet our new President. It’s impossible to know what the tech priorities will be before they are announced, but there are some key issues relevant to innovation that will undoubtedly be at the forefront of their minds, given the president’s focus on job growth: the future of work and of property rights online.

Read the full piece here.

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Innovation & the New Economy

Worldwide business means worldwide accountability, even on the Internet

Popular Media There is a lot at stake in the struggle to control the proliferation of illicit material online. On one hand, criminal rings use intermediaries to . . .

There is a lot at stake in the struggle to control the proliferation of illicit material online. On one hand, criminal rings use intermediaries to traffic in illegal pharmaceuticals and to commit property theft and a host of other crimes. On the other hand, civil society advocates (and intermediaries themselves) raise the threat of mass censorship arising from attempts to impose obligations upon intermediaries that would require them to assist in deterring illegal activity.

Even after more than two decades of case l aw on the subject, questions relating to basic jurisdictional authority over intermediaries remain evergreen.

Read the full piece here.

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Innovation & the New Economy

The DOJ-FTC IP Guidelines: Suggestions for Promoting Innovation

Regulatory Comments This week, the International Center for Law & Economics filed comments on the proposed revision to the joint U.S. Federal Trade Commission (FTC) – U.S. Department of Justice (DOJ) Antitrust-IP Licensing Guidelines.

Summary

The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property, and, that IP licensing presents presumptively procompetitive opportunities for market actors to manage their property rights.
As the proposed guidelines recognize, licensing, along with a variety of vertical arrangements, frequently allows separate firms to realize efficiencies in the production, marketing and commercialization process that are otherwise difficult, if not impossible, to achieve individually.1 As the proposed guidelines note, this translates not merely into single firms commercializing a particular discovery, but also into their undertaking a variety of licensing relationships that, for example, encourage licensees to further improve upon the original invention.

More broadly, in many cases, licensing arrangements allow inventive firms that lack sufficient capital to license inventions to firms that are better positioned to engage in the efficient production of complicated or expensive processes and products. Economic literature broadly recognizes the value of this form of specialization,2 and the proposed guidelines are to be commended for likewise recognizing this reality and generally encouraging the practice.

Although, in short, our assessment of the proposed guidelines is positive, we offer some constructive criticism in the remainder of this comment. In particular, we believe, first, that the proposed guidelines should more strongly recognize that a refusal to license does not deserve special scrutiny; and, second, that traditional antitrust analysis is largely inappropriate for the examination of innovation or R&D markets.

Filed under: antitrust, doj, essential facilities, federal trade commission, truth on the market Tagged: Intellectual property, Patent

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Antitrust & Consumer Protection

Comments, In the Matter of the Joint Guidelines for the Licensing of IP

Regulatory Comments The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property...

Summary

The proposed guidelines are founded on a commendable set of underlying assumptions: that intellectual property (“IP”) is, for antitrust purposes, amenable to the same sort of analysis that applies to other forms of property, and, that IP licensing presents presumptively procompetitive opportunities for market actors to manage their property rights.

As the proposed guidelines recognize, licensing, along with a variety of vertical arrangements, frequently allows separate firms to realize efficiencies in the pro- duction, marketing and commercialization process that are otherwise difficult, if not impossible, to achieve individually.1 As the proposed guidelines note, this translates not merely into single firms commercializing a particular discovery, but also into their undertaking a variety of licensing relationships that, for example, encourage licensees to further improve upon the original invention.

More broadly, in many cases, licensing arrangements allow inventive firms that lack sufficient capital to license inventions to firms that are better positioned to engage in the efficient production of complicated or expensive processes and products. Economic literature broadly recognizes the value of this form of specialization, and the proposed guidelines are to be commended for likewise recognizing this reality and generally encouraging the practice.

Although, in short, our assessment of the proposed guidelines is positive, we offer some constructive criticism in the remainder of this comment. In particular, we believe, first, that the proposed guidelines should more strongly recognize that a refusal to license does not deserve special scrutiny; and, second, that traditional antitrust analysis is largely inappropriate for the examination of innovation or R&D markets.

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Intellectual Property & Licensing

MVPDs “Unlock” the Box (again), but the FCC Doesn’t Seem to Care

TOTM The FCC’s blind, headlong drive to “unlock” the set-top box market is disconnected from both legal and market realities. Legally speaking, and as we’ve noted . . .

The FCC’s blind, headlong drive to “unlock” the set-top box market is disconnected from both legal and market realities. Legally speaking, and as we’ve noted on this blog many times over the past few months (see here, here and here), the set-top box proposal is nothing short of an assault on contracts, property rights, and the basic freedom of consumers to shape their own video experience.

Read the full piece here

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Intellectual Property & Licensing

The Latest Front in the Patent Wars: Attacking Innovation in Universities

TOTM It’s not quite so simple to spur innovation. Just ask the EU as it resorts to levying punitive retroactive taxes on productive American companies in . . .

It’s not quite so simple to spur innovation. Just ask the EU as it resorts to levying punitive retroactive taxes on productive American companies in order to ostensibly level the playing field (among other things) for struggling European startups. Thus it’s truly confusing when groups go on a wholesale offensive against patent rights — one of the cornerstones of American law that has contributed a great deal toward our unparalleled success as an innovative economy.

Read the full piece here.

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Intellectual Property & Licensing

No, The FCC Should Not Have the Power to Cancel Contracts

TOTM Copyright law, ever a sore point in some quarters, has found a new field of battle in the FCC’s recent set-top box proposal. At the . . .

Copyright law, ever a sore point in some quarters, has found a new field of battle in the FCC’s recent set-top box proposal. At the request of members of Congress, the Copyright Office recently wrote a rather thorough letter outlining its view of the FCC’s proposal on rightsholders.

Read the full piece here.

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Financial Regulation & Corporate Governance