Philip J. Weiser

Modularity, Vertical Integration, and Open Access Policies: Towards a Convergence of Antitrust and Regulation in the Internet Age

This article aims to help regulators and commentators incorporate both Chicago School and post-Chicago School arguments in assessing whether regulation should mandate open access to information platforms. The authors outline three alternative models that the FCC could adopt to guide its regulation of information platforms in the future and facilitate a true convergence between antitrust and regulatory policy.

The Internet, Innovation, and Intellectual Property Policy

The Internet continues to transform the information industries and challenge intellectual property law to develop a competition policy strategy to regulate networked products. In particular, inventors of “information platforms” that support the viewing of content—be they instant messaging systems, media players, or Web browsers—face a muddled set of legal doctrines that govern the scope of available intellectual property protection. This uncertainty reflects a fundamental debate about what conditions will best facilitate innovation in the information industries—a debate most often played out at the conceptual extremes between the “commons” and “proprietary control” approaches to the Internet and intellectual property policy. This Article proposes a “competitive platforms model” as a new conceptual framework to govern intellectual property and Internet policy. This model suggests that where information platforms will continue to face competitive alternatives, intellectual property law and policy should encourage competition among them as a means of driving companies to develop superior products and enabling them to appropriate rewards from their inventions. Alternatively, where a particular information platform emerges as the dominant one—for example, in the case of Microsoft Windows in the market for PC operating systems—intellectual property protection against the reverse engineering of its platform standard or user interface should recede. As a strategy to implement the competitive platforms model, this Article proposes a reformulation of the fair use and misuse principles—as developed in both copyright and patent law—to provide a unified, clear, and coherent framework for protecting platform standards and user interfaces. Moreover, the competitive platforms model calls upon industry standard-setting bodies and the federal government to reassume the critical coordination and funding roles they served in the early days of the Internet in order to support the development of the parts of the Internet’s information infrastructure that are intrinsically open to all and thus are vulnerable to underinvestment.

Rethinking Merger Remedies: Toward a Harmonization of Regulatory Oversight with Antitrust Merger Review

The diverse and excellent set of authors assembled in this book sheds light on the continuing and conflicting calls for deregulation and re-regulation of important industries and informs the ongoing, increasingly global, policy debate over the evolving line between regulation and general competition policy. The purpose of this book is to understand the debate and its policy implications, focusing on the traditionally regulated sectors of telecommunications and energy, and comparing approaches in the European Union and the United States.