Patent Settlements as Antitrust Violations

Earlier this week, I had the chance to participate together with Scott Hemphill and Dan Crane on an interesting conference panel devoted to the antitrust implications of settling a patent suit between rival drug makers. Here is a short version of the issue we discussed.

Imagine someone suing you and then offering to pay you a few million dollars if you agree to settle the case. Sound strange, impossible, or just plain crazy? Well maybe it is for the average citizen. But strange as it may sound, for generic drug manufacturers this is not merely possible; it actually occurs with some frequency, as is documented empirically in Scott’s excellent working paper and in Dan’s important earlier work on the subject.

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Tom’s Diner and the Origin of MP3s

Suzanne Vega has a fascinating essay over on the New York Times website about her song, “Tom’s Diner,” and its subsequent history, which is rich with details about the artistic creation process, how an artist reacts to an unauthorized remix, the burdens of licensing, and the history of MP3 files. “Tom’s Diner” was originally released as the lead track on her best-selling album (the one that had “Luka” on it). A few years later, a pair of studio engineers calling themselves “DNA” remixed Vega’s a cappella “Tom’s Diner” with instrumentals and a base beat, turning it into a dance track. They then printed up some vinyl records and began selling them, which attracted the attention of Vega’s label. But Vega herself liked the remix, and a licensing deal was struck. To Vega’s surprise, the remix took off and became a hit, three years after the original song was released.

And then there’s the story about how “Tom’s Diner” was used to create the MP3.

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Who’s Afraid of ProCD?

It’s a prevalent meme in contemporary copyright scholarship that the public domain is being “enclosed” by expansions in copyright law. Scholars point to many examples of this alleged expansion, including term extension, anticircumvention laws, and court decisions rejecting certain attempts to claim fair use. But one widespread source of complaint among copyright scholars is the idea that contracts are somehow being used to expand copyright owners’ rights. And the chief villain in this story is the decision that allegedly started it all, the Seventh Circuit’s own ProCD v. Zeidenberg, authored by Judge Frank Easterbrook.

I should note right off the bat that I am not quite so enamored of form agreements as Judge Easterbrook is. That much I probably share with my fellow copyright specialists. But I’ve come to the tentative conclusion that the case for contracts somehow expanding copyright rights is vastly overstated, and perhaps illusory. ProCD–with the exception of one overlooked wrinkle–is not the threat everyone seems to think it is.

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