Regulating the Global Information Society

By Christopher T. Marsden | Go to book overview

12

Will the Internet remake antitrust law?

Mark Lemley1

I have to start out with an apology-I have a bit of a problem. I wish to discuss the subject of whether the Internet will remake antitrust law, but I have been retained by one of the parties in the United States v. Microsoft case. 2 As a result, I can't tell you about that case. It is roughly like asking someone to sit in a room for an hour and not think about a 900-pound gorilla. Nonetheless, it is fortunate in one sense because the thesis of my chapter all along would have been that the press is missing the point. There are lots of things going on at the intersection of antitrust, intellectual property, and the Internet right now that are more important than United States v. Microsoft. I will therefore take this opportunity to discuss a couple of them.

Now you have read the newspaper and you are no doubt asking: “What could be more important than United States v. Microsoft?” I want to focus on three things. The first is antitrust in standard setting by groups. This is a lurking issue. It never makes the newspaper because it is not an issue, it is not a case, it is a thousand little issues and a thousand little cases. But they are going on all around you. Every standard-setting organization all around the world has, or is, developing some set of rules regarding the treatment of intellectual property and standards. Every company in the high technology community belongs to at least one and frequently as many as sixty or a hundred different standard-setting organizations. And antitrust law, as it turns out, has inconsistent things to say about what you can and cannot do with intellectual property in a standard-setting organization. Issue number two, which is also more important than United States v. Microsoft, relates to the Intel cases and more generally the idea of refusing to license your intellectual property as an antitrust violation or something that antitrust law itself restrains. And number three relates to the question of who owns, or can own, a network standard. I will present this question not so much as one involving US v. Microsoft, but by a case going on in the Northern District of California right now called Sun v. Microsoft3

Let me give you a little bit of background. I think what makes these issues so important from an Internet perspective is that the Internet is a network-it is a market governed by network effects. What do I mean by that? Well, the Internet is not like normal markets in the same way the telephone system is not like

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