The First Sale Doctrine and the Economics of Post-Sale Restraints

The first sale doctrine limits the exclusive rights that survive the initial authorized sale of an item protected by intellectual property (IP) rights, and therefore limits the ability of IP owners to impose post-sale restraints on the distribution or use of items embodying their IP. While the doctrine has deep common law and statutory roots, its exact rationale and scope have never been fully explored and articulated. As a result, the law remains somewhat unsettled, in particular with respect to the ability of IP owners to opt-out of the doctrine and with respect to the applicability of the doctrine to situations of parallel importation. This Article provides answers to these unsettled issues. By applying insights from the economics of post-sale restraints, the Article shows that the main benefits of post-sale restraints involve situations of imperfect vertical integration between coproducing or collaborating firms, which occur during the production and distribution phases or shortly thereafter. In such situations, opting out of the first sale doctrine should be permitted. Beyond such limited circumstances, however, the first sale doctrine promotes important social and economic goals: it promotes efficient long-term use and preservation of goods embodying IP and facilitates user-innovation. Therefore, contrary to some other views, I conclude that the economics of post-sale restraints confirm the validity and support the continued vitality of the first sale doctrine

Commitment Power in a Non-Stationary Durable-Good Market

This paper derives and evaluates the decisions of a durable good monopolist in a context where demand for the services of the durable good changes over time. It shows that, if the size of the market decreases over time, social welfare may be higher when the monopolist has commitment ability than when she has not. Moreover, the equilibrium under a monopolist seller with commitment power may Pareto-dominate the equilibrium under a monopolist seller without commitment ability. The work also proves that these results obtain if there is uncertainty about future demand for the services of the durable good.commitment ability, demand variations, monopoly, durable goods

Antitrust Perspectives for Durable-Goods Markets

Markets for durable goods constitute an important part of the economy. In this paper I first briefly review the microeconomic theory literature on durable-goods markets, focusing mostly on the last ten years. I then discuss a number of my own recent analyses concerning optimal antitrust policy in durable-goods markets that mostly build on ideas in the larger literature. Specific topics covered include: (i) optimal antitrust policy for durable-goods mergers; (ii) practices that eliminate secondhand markets; (iii) tying in markets characterized by upgrades and switching costs; and (iv) antitrust policy for aftermarket monopolization in durable-goods markets.

Tying, Upgrades, and Switching Costs in Durable-Goods Markets

This paper investigates the role of product upgrades and consumer switching costs in the tying of complementary products. Previous analyses of tying have found that a monopolist of one product cannot increase its profits and reduce social welfare by tying and monopolizing a complementary product if the initial monopolized product is essential, where essential means that all uses of the complementary good require the initial monopolized product. We show that this is not true in durable-goods settings characterized by product upgrades, where we show tying is especially important when consumer switching costs are present. In addition to our results concerning tying our analysis also provides a new rationale for leasing in durable-goods markets. We also discuss various extensions including the role of the reversibility of tying as well as the antitrust implications of our analysis.

The Durapolist Puzzle: Monopoly Power in Durable-Goods Markets

This Article studies the durapolist, the durable-goods monopolist. Durapolists have long argued that, unlike perishable-goods monopolists, they face difficulties in exercising market power despite their monopolistic position. During the past thirty years, economists have extensively studied the individual arguments durapolists deploy regarding their inability to exert market power. While economists have confirmed some of these arguments, a general framework for analyzing durapolists as a distinct group of monopolists has not emerged. This Article offers such a framework. It first presents the problems of durapolists in exercising market power and explains how courts have treated these problems. It then analyzes the strategies durapolists have devised to overcome difficulties in acquiring and maintaining monopoly power and the legal implications of these strategies. This Article\u27s major contributions are (a) expanding the conceptual scope of the durapolist problem, (b) presenting the durapolist problem as an explanation for many common business practices employed by durapolists, and (c) analyzing the legal implications of strategies employed to overcome the durapolist problem

The Optimal Software Licensing Policy under Quality Uncertainty

The rapid rate of standard software development, and the need of users to stay current, has unleashed unprecedented levels of process and product innovations in the software industry. A new service model has emerged which delivers application software and services over the Web on a lease or subscription basis. Software vendors such as Sun, Oracle, and Microsoft have already adopted this innovative business model. They have expanded their sales offerings with lease contracts that augment their traditional one-time purchase transactions. Our paper studies the optimal licensing policy of a software vendor that uses that business model. We look at software vendors that are both selling (at a posted price) or leasing their products where as lessor they guarantee that the lessee will always have the latest version of the software on their desktop. We address some of the specific issues of implementing this policy at the packaged software market, including the impact of network externality, negligible marginal production costs, and upgrade compatibility. We show that by properly defining their pricing structure, software vendors can segment the market and realize effective second- degree price discrimination and show how and when software vendors can maximize their profits through the use of this new licensing policy

Price Discrimination & Intellectual Property

This chapter reviews the law and economics literature on intellectual property law and price discrimination. We introduce legal scholars to the wide range of techniques used by intellectual property owners to practice price discrimination; in many cases the link between commercial practice and price discrimination may not be apparent to non-economists. We introduce economists to the many facets of intellectual property law that influence the profitability and practice of price discrimination. The law in this area has complex effects on customer sorting and arbitrage. Intellectual property law offers fertile ground for analysis of policies that facilitate or discourage price discrimination. We conjecture that new technologies are expanding the range of techniques used for price discrimination while inducing new wrinkles in intellectual property law regimes. We anticipate growing commentary on copyright and trademark liability of e-commerce platforms and how that connects to arbitrage and price discrimination. Further, we expect to see increasing discussion of the connection between intellectual property, privacy, and antitrust laws and the incentives to build and use databases and algorithms in support of price discrimination