Copyright Misuse and the Limits of the Copyright Monopoly

Although both the antitrust and intellectual property laws are intended to foster innovation and efficiency, the former do so by outlawing monopolies and the latter by protecting them. These disparate methods cause antitrust law and intellectual property law to coexist in a state of permanent tension. Until recently, that tension was reduced by the limited duration of patents and copyrights. However, with exponential growth of innovation and invention in technology has come rapid obsolescence of many inventions. Software and hardware become obsolete in a matter of a few years or months. The postindustrial era has therefore reinvigorated the conflict between intellectual property law and antitrust law. At the nexus of this tension, one will find the doctrines of patent and copyright misuse. Unfortunately, neither the 1976 Copyright Act nor the antitrust statutes addresses the tension between the two bodies of law. In the copyright field, however, the dangers inherent in any monopoly have spawned legal doctrines, such as the misuse defense, designed to prevent abuse of the monopoly. The purpose of this Article is to discuss the current status of the copyright misuse doctrine and predict its probable future course. Until 1990, no federal circuit court and only one federal district court 8 accepted the copyright misuse defense, making such predictions difficult. Since 1990, however, acceptance of the defense (in theory, at least) has become quite broad. The questions now are: what are the tenets of the doctrine and when will the defense most likely succeed?