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The Global Limits of Competition Law$
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D. Daniel Sokol and Ioannis Lianos

Print publication date: 2012

Print ISBN-13: 9780804774901

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804774901.001.0001

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IP's Advantages over Antitrust

IP's Advantages over Antitrust

Chapter:
(p.117) 8 IP's Advantages over Antitrust
Source:
The Global Limits of Competition Law
Author(s):

Daniel A. Crane

Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804774901.003.0009

This chapter suggests shifting some of antitrust's responsibility to intellectual property (IP) law in areas where there is overlap. In the last quarter century, much of the judicial retrenchment of antitrust liability norms in the United States has been motivated by concerns over antitrust's institutional and remedial structure. Treble damages, lay juries, attorney-fee shifting, and other features create a concern that overly zealous antitrust enforcement will chill beneficial competition. There is also a perception that courts are ill equipped to police dominant firm behavior, for example, by limiting the prices a monopolist charges or the quality of its service, or by imposing the terms and conditions upon which it must deal with rivals. It is argued that IP law can address many of the issues that antitrust cannot (or will not) address in IP-intensive industries. For example, by shifting from property rules to liability rules for IP rights, courts can police market power without imposing an affirmative obligation to deal or (usually) directly engaging in rate regulation of dominant firms.

Keywords:   antitrust law, intellectual property law, antitrust liability, competition, property rules, liability rules

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