According to the NYT, Nicolas Sarkozy said that “[w]e won’t let ourselves be stripped of our heritage to the benefit of a big company, no matter how friendly, big or American it is,” probably referring to the fact that about half of the 12 million books scanned by Google are not in English. How exactly is cultural heritage threatened by increased access? Because hundreds of thousands of links to French language books would be added to the 850,000 entries in the French Wikipedia within weeks? Because more and more people around the world would read, re-read, and incorporate in their own lifes, storytelling, and cultural production French works? Prime Minister Francois Fillon similarly said that France would not accept another cultural industry being “threatened by looting.” So culture is looted by access, use, and relevance? What a profound misunderstaning of what culture is and how it works.

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Among the stock arguments in the debate whether IP rights can be essential facilities and if so whether and under what conditions mandatory RAND licenses can be pursued under Section 2 is the claim that a duty to license (e.g., API specifications) is fundamentally at odds with the grant of the IP right itself. That is because patents and copyrights explicitly involve the power to exclude others from infringing those rights. A consequence of this argument has been the call for stronger protection against antitrust duties to share for IP rights than is afforded to tangible property. The CSU v. Xerox case is an illustration of this line of reasoning. Irrespective of one’s policy position with respect to essential facilities claims, the argument that duties to license are fundamentally at odds with the IP grand is unconvincing, because both IP rights and essential facilities are expressions of very similar tradeoffs between losses in short term static efficiency in order to promote long term dynamic efficiencies. Copyrights and patents are granted to promote the progress of science and useful arts in the long run. The right to exclude, and the costs that come with it, is a means to that end. Essential facilities recalibrate the exclusion/incentive tradeoff where the expected gains from maintaining the upstream incentives to innovate and invest are outweighed by the expected gains from increased downstream competition. Given the structural similarity of the tradreoffs involved, essential facility tweaks to the IP exclusion default are not “fundamentally at odds” with the IP grant. Rather, both are expressions of the same policy concerns. That doesn’t mean, of course, that such tweaks — or exceptions to the IP rules — are always appropriate, as some facilities are far more likely to induce significant downstream welfare gains from being opened than others. It does mean, however, that one cannot simply avoid the issue by pointing to an existing IP right.

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Here are the slides for an upcoming talk on standard setting after Rambus, Broadcom (3rd. Cir.), Qualcomm (Fed. Cir.), and N-Data at the Advanced Patent Law Institute Conference in Palo Alto. Drop me a note if you are attending and would like me to address any other topics (offline, probably, the slot is only for 30 minutes).

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Here are the slides from my talk at the PLI seminar Understanding the IP License 2009 in Chicago. This was a fun event with a great crowd. Thanks to everyone for making this such a rewarding trip!

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Here are some slides from a recent, high-level discussion of the Robinson-Patman Act, geared towards a technology firm audience.

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