Copyright doesn’t infringe antitrust.

Antitrust is grounded in the principle that competition is good for the consumer, and that anticompetitive behaviors such as unreasonable restraints of trade, monopolistic conduct, price fixing, and price discrimination are suspect. On the surface, intellectual property and antitrust might appear to be inherently incompatible. After all, prevention of monopolistic conduct is an explicit antitrust purpose,62 where stopping such conduct is seen as “protect[ing] the process of competition for the benefit of consumers, making sure there are strong incentives for businesses to operate efficiently, keep prices down, and keep quality up.”63 On the other hand, copyright is a monopoly legitimized by Congress, and as noted in a later section (see Misuse), courts have no expectations that these monopoly owners foster competition or keep costs down.

However, once one takes a look at the actual descriptions within antitrust, it becomes apparent that the monopolies bestowed by copyright are not the same as the monopolies seen to endanger the economy. An antitrust violation often involves an actor abusing market power, where market power is defined as “the ability profitably to maintain prices above, or output below, competitive levels for a significant period of time.”64 It is unlikely that an individual author will ever hold market power such that she would run afoul of antitrust laws. Corporations who own parts of the rights within copyright, though, may engage in behaviors that would draw antitrust scrutiny. Thus, where Congressional-granted monopolies would not by themselves raise antitrust concerns, how those monopolies are used might.

To overcome any misapprehension that IP is immune from antitrust review or that IP monopolies automatically confer market power, the Department of Justice (DOJ) and the Federal Trade Commission (FTC) have articulated the articulate three general principles in assessing antitrust allegations when IP licenses are involved:

(a) for the purpose of antitrust analysis, the Agencies apply the same analysis to conduct involving intellectual property as to conduct involving other forms of property, taking into account the specific characteristics of a particular property right;

(b) the Agencies do not presume that intellectual property creates market power in the antitrust context; and

(c) the Agencies recognize that intellectual property licensing allows firms to combine complementary factors of production and is generally procompetitive.65

While these principles explicitly encompass licenses for all types of intellectual property, it is important to note that the examples it provides throughout describe instances where both the licensor and the licensee are commercial actors interested in exploitation of the IP in the course of business. They lean heavily on patent and operational software, which have significantly different characteristics than the types of copyrighted materials that libraries and users license, so the document by itself does not shed a great deal of light on how licenses between other types of actors should be assessed. For that reason, this section relies as much on general antitrust principles as the DOJ/FTC document