Copyright Conspiracy: How the New Copyright Alert System May Violate the Sherman Act Sean M. Flaim* A pdf version of this article may be downloaded here. Introduction I. The Copyright Alert System A. A Brief History of Online Infringement B. The Development of the Graduated Response System C. U.S. Graduated Response: The Copyright Alert System 1. Creation of the Center for Copyright Information 2. Identifying Infringing Content 3. Copyright Alert Program 4. Due Process Under the Copyright Alert System II. Antitrust A. Brief Overview of Antitrust Law B. The Relationship Between Antitrust Law and Copyright C. Private Enforcement and Group Boycotts 1. Early Boycott Cases – Per Se Liability 2. Per Se Liability to Rule of Reason III. Application of Antitrust Law to the Copyright Alert System A. What Is the Restraint at Issue? 1. Horizontal, Vertical, or Hybrid Agreement? 2. Concerted Refusal to Deal and/or Group Boycott B. Do the Parties Possess Market Power? 1. Product Market 2. Geographic Market C. What Are the Anticompetitive Aspects of the Copyright Alert System? 1. Consumer Welfare 2. Governance Provisions D. What Are the Pro-Competitive Justifications Offered? 1. Societal Costs of Copyright Infringement 2. Network Congestion 3. Copyright Alert System Benefits Consumers 4. Section 512(i) of the Digital Millennium Copyright Act E. The Copyright Alert System Fails the Rule of Reason IV. Recommendations for Improvement A. Congressional Action B. The Department of Justice and the Federal Trade Commission Conclusion Continue reading →
