Antitrust law is as thoroughly unlibertarian as IP law is, though my guess is patent and copyright do more damage to property rights, freedom, the free market, and the economy.¹ The perverse thing is that the state helps to create monopolies by its various policies (patent, copyright, FDA regulations) and then it turns around and uses its antitrust regulations to punish companies for acquiring these monopolies.² And, also perversely, the use of antitrust law itself can limit the abilities of private actors to deal privately with “piracy,” competition and knockoffs, which then supports the argument that IP is needed (and then the IP rights, once granted, get the companies in trouble with antitrust law if these IP monopoly rights are “abused”). (As an example: antitrust law has been used against the fashion industry, and the movie chain system, making it harder for these industries to engage in private measures in response to knockoffs and “piracy”.)

And yet, as bad as antitrust is, and as schizo as federal policy on antitrust and IP is, there are times when one can almost support the use of antitrust. Case in point is an example I mentioned in a previous post,?Price Controls, Antitrust, and Patents, where I suggested that use of price controls and/or antitrust reasons to limit the monopoly prices charged by patentees and/or to restrict their patent monopoly grant, might be a not-bad result.

And here we have a law professor observing that the “six strikes” arrangement to enforce copyright might itself violate antitrust law, since it goes beyond the rights copyright law itself gives holders, has due process issues, and so on. I have no problem with the copyright enforcement rights of Big Media being restricted, even if odious antitrust principles are used to do it. Of course a simpler and better solution would be to get rid of state-granted monopolies like copyright and patent in the first place, leaving the state with no good excuse for needing antitrust law either…

Op-ed: Imminent “six strikes” Copyright Alert System needs antitrust scrutiny

Internet providers will soon deliver “strikes” to US subscribers accused of …

by?Sean M. Flaim?Mar 18 2012, 8:00pm CDT

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With the “Copyright Alert System” going into operation over the next few months, major American ISPs will start sending out “strikes” to users accused of infringing copyrights online. Sean Flaim, who has just completed extensive research on the topic, argues that the system has real benefits―but it needs close supervision. The opinions expressed here do not necessarily represent those of Ars Technica.

Eight months ago, content owners and Internet service providers (ISPs) agreed to the Copyright Alert System, a?“six-strike” plan to reduce copyright infringement by Internet users. Under the system, ISPs will soon send educational alerts, hijack browsers, and perhaps even slow/temporarily block the Internet service of users accused of online infringement (as identified by content owners).?At the time it was announced, some?speculated?that the proposed system might not be legal under the antitrust laws. Were they right?

Recently, I?completed a draft research paper?where I explored the potential antitrust aspects of “six strikes” even further. There, I concluded that while the system has some promise for reducing online infringement, its private nature, combined with a lack of government oversight, raises significant antitrust concerns. It will require careful monitoring by regulators.

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1. See, e.g.,?“Copyright and Free Trade; Patents and Censorship”;?“Death by Copyright-IP Fascist Police State Acronym”;?“SOPA is the Symptom, Copyright is the Disease: The SOPA Wakeup Call to Abolish Copyright,”?“Where does IP Rank Among the Worst State Laws?” ;?“Should Copyright Be Allowed to Override Speech Rights?”;?“Copyright is Unconstitutional”;?“Patent vs. Copyright: Which is Worse?”;?“Costs of the Patent System Revisited.?? [↩]
2. “The Schizo Feds: Patent Monopolies and the FTC.”? [↩]

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