Business Commons^™

Addressing The Divisions In Antitrust Policy, Herbert J. Hovenkamp

All Faculty Scholarship

This is the text of an interview conducted in writing by Professor A. Douglas Melamed, Stanford Law School.

The Innovation Commons, Herbert J. Hovenkamp

All Faculty Scholarship

This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It differs from IP/antitrust casebooks in that it considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters …

Competition For Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Both antitrust and IP law are limited and imperfect instruments for regulating innovation. The problems include high information costs and lack of sufficient knowledge, special interest capture, and the jury trial system, to name a few. More fundamentally, antitrust law and intellectual property law have looked at markets in very different ways. Further, over the last three decades antitrust law has undergone a reformation process that has made it extremely self conscious about its goals. While the need for such reform is at least as apparent in patent and copyright law, very little true reform has actually occurred.

Antitrust has …

Is There A Role For Common Carriage In An Internet-Based World?, Christopher S. Yoo

All Faculty Scholarship

During the course of the network neutrality debate, advocates have proposed extending common carriage regulation to broadband Internet access services. Others have endorsed extending common carriage to a wide range of other Internet-based services, including search engines, cloud computing, Apple devices, online maps, and social networks. All too often, however, those who focus exclusively on the Internet era pay too little attention to the lessons of the legacy of regulated industries, which has long struggled to develop a coherent rationale for determining which industries should be subject to common carriage. Of the four rationales for determining the scope of common …

Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp

All Faculty Scholarship

For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.

Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …

Innovation And The Domain Of Competition Policy, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust policy and the IP laws are both concerned with practices that restrain competition unnecessarily by reducing the size of the public domain beyond that which the Constitution contemplates, or as Congress intended for them to be expanded. In fact, antitrust has a dual role as promoter of competition in IP intensive markets. It regulates both restraints on competition and restraints on innovation. The first line protector of the competitive process in innovation is the IP statutes themselves. The Constitutional Mandate to Congress to create intellectual property regimes in order to promote the Progress of Science and useful Arts is …