\u3cem\u3eIndependent Ink\u3c/em\u3e at the Crossroads of Antitrust and Intellectual Property Law: The Court\u27s Holding Regarding Market Power in Cases Involving Patents and Implications in Cases Involving Copyrights

Abstract

By eliminating the market power presumption for patent holders, Independent Ink calls into question the presumption\u27s continued validity for tying arrangements involving copyrights. While the Court\u27s holding directly applies only to patents, we present three reasons why, after Independent Ink, the presumption can no longer be viable in antitrust lawsuits challenging a tying arrangement involving a copyrighted product. First, the Court\u27s rationale for eliminating the presumption including citations to extensive academic writings, agency guidelines, and legislative amendments precludes the presumption\u27s continued application in any other context. Second, copyrights are significantly less likely than patents to confer market power because the scope of the limited monopoly granted by the copyright laws is narrower than that conferred by the patent laws. Therefore, once the Court has found the presumption to be invalid in the patent context, there is no reasonable basis for its continued application to tying arrangements involving copyrights. Third, as the Court\u27s tolerance toward tying arrangements has increased over the past thirty years, the Court has become increasingly reluctant to find the market power required to make tying arrangements per se illegal. Given Independent Ink\u27s holding that many tying arrangements, even those involving patents and requirements ties, are fully consistent with a free, competitive market, \u27 it would be anomalous to preserve a presumption that condemns all copyright tying arrangements without requiring any showing of market power or anticompetitive effect. In Part II of this article we review the history of the Court\u27s tying cases, chronicling the steady construction of the market power presumption as well as the Court\u27s increasing distrust of tying arrangements in general. We also note the Court\u27s particular antipathy toward tying arrangements involving intellectual property. We then describe the partial deconstruction of those presumptions, culminating in the recent abolition of the presumption of market power for patent holders in Independent Ink. In Part III, we argue that, consistent with the Court\u27s reasoning in the patent context, Independent Ink should signal the end of the market power presumption for copyright holders in antitrust cases. Accordingly, just as tying arrangements involving patented products are not condemned per se, tying arrangements involving copyrighted products should not be condemned per se under the antitrust laws unless the plaintiff is able to prove market power