Gaining Momentum: A Review of Recent Developments Surrounding the Expansion of the Copyright Misuse Doctrine and Analylsis of the Doctrine in Its Current Form

The United States intellectual property ( IP ) system is the foundation for incentives for authors and inventors to create and invent so that their work will be distributed to the public for the betterment of society. These incentives, in the form of limited monopolies over creations via patents, copyrights, and trademarks, are becoming increasingly important as the United States depends upon intellectual property to sustain its economy. As the intellectual property industry grows, it becomes vital to preserve the impetus behind its creation: the public good, or more specifically, the public\u27s ability to make use of and enjoy new ideas and creations. Antitrust laws, namely the Sherman Act, which seek to suppress monopoly abuse and promote competition, seemingly contradict the limited monopoly granted to IP owners. Traditionally, courts have resolved this tension in the only way possible that preserves the essence of both statutory regimes, particularly the integrity of the federal patent and copyright statutes: Exercise of the exclusive rights granted to an inventor or author, without more, is not unlawful under antitrust law. In order to trigger a violation of antitrust laws, an owner of intellectual property must attempt to expand the monopoly granted to the owner beyond the scope of rights he may legally claim in the intellectual property, or enter into agreements with others regarding the intellectual property rights (including others holding intellectual property rights in different products) that restrain trade. This Article addresses the judicially created defense to copyright infringement actions that limits these expansion attempts known as copyright misuse. This doctrine has become necessary in order to preserve the balance between intellectual property and effective competition. This necessity is reflected in the doctrine\u27s recent judicial recognition and the failure of antitrust law and other pro-competition doctrines to remedy the problems presented by new technologies. Part II of this Article is a brief review of general copyright law and its relationship with antitrust law. Part III will chart the development of the copyright misuse doctrine up to the twenty-first century, summing up the prevalent ideology of the doctrine, and Part IV will explore the recent developments affecting the doctrine and analyze the courts\u27 treatment of the doctrine. Finally, Part V will consider the arguments for and against adoption of the doctrine by the courts. It will evaluate the doctrine\u27s strengths and weaknesses in comparison to other proposed vehicles for furtherance of a pro-competition model