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Hastings Communications and Entertainment Law Journal

Authors

David McGowan

Abstract

This Article examines the application of the antitrust laws to computer software markets, beginning with a discussion of the different economic approaches underlying the antitrust and copyright laws. The Article contends generally that antitrust does not provide the analytical tools necessary to determine the optimal scope of copyright protection. The Article then examines more particularly the increasingly common argument that access to software code-including at least some form of copying-may be an "essential facility" under the antitrust laws. In this regard the Article discusses the analytical confusion surrounding the essential facilities concept and argues that application of the concept should be limited to situations involving natural monopoly conditions. Courts have thus far shown tolerance, albeit unsteady, for copying to achieve compatibility between programs and between software and hardware. Under such a regime, software markets are not characterized by natural monopoly conditions and application of the essential facilities doctrine is unwarranted.

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