I recently became part of the team that will be revising the ABA Antitrust Jury Instruction Handbook. This book contains model jury instructions that are often used in antitrust cases throughout the United States.
I think the award for most creative market definition (at least for 2013) has to go to the plaintiff in Between the Lines Productions, LLC v. Lions Gate Entertainment Corp., Case No. 13-cv-3584 (S.D.N.Y. May 30, 2013). There, the producers of a parody film called “Twiharder” recently filed suit against Lion Gate, the makers of, among other things, the popular Twilight movie series.
“Defendants’ anticompetitive conduct sets the benchmark example for why James Madison and Thomas Jefferson were apprehensive in the months leading up to the Philadelphia Convention about granting authors even limited copyright monopolies over their works,” Between the Lines writes in its complaint.
According to the (219!) page complaint, the defendants have sought to monopolize the “conversation” in “adjacent” or downstream markets, i.e., in markets downstream of the primary market “of original intention targeted to consumers of teen fantasy romance.” One of the downstream markets is the “Z Market,” defined as the market for the creation of novel works that are repulsed by the Twilight movies. Allegedly, defendants have achieved the monopolization of these “Fair Use Zones” through a highly oppressive intellectual property enforcement policy that uses sham cease and desist notices and a compendium of prohibited trademark / service mark registrations to chill speech and exclude all competition from the “Z Market.”
The complaint actually details five (!) different relevant antitrust markets and contains a full-page chart (at page 112) detailing them all.
The plaintiff seeks $375 million in damages for alleged breaches of federal antitrust laws.
Look, this is fun and creative. It illustrates nicely what happens when Hollywood bumps into antitrust law. But all I can say about these market definitions is: good luck with that. To the extent the plaintiff was hoping to get some publicity for its creativity, kudos.
My article on the ten things to do if you ever receive a DOJ antitrust subpoena is now up over at InHouse Blog.
I’ve been updating the formatting of the site (but not changing any of the content). It’s a work in progress, but I hope that the site will look both fresher and more streamlined and load faster. Thanks for reading and for your patience.
Here’s a quick summary of the top five blog posts from 2012.
1. American Express Can’t Enforce Arbitration Agreement Antitrust Class Action Waiver. Discussing the Second Circuit case refusing to enforce an American Express arbitration agreement with a class action waiver provision.
2. Nine Potential Patent Licensing “No-Nos.” Discussing antitrust issues arising from patent licenses.
3. iPad Note-taking Apps for Lawyers Reviewed. Reviewing several note-taking apps for the iPad.
4. Can My Supplier Refuse to Sell Products to Me? Discussing antitrust issues arising from a supplier’s refusal to supply product.
5. You Can’t Try to Monopolize a Market In Which You Don’t Compete. Discussing the Infostream Group case (which dismissed antitrust claims against PayPal).
For those interested, in this blog’s first full year of operation, I’m happy to report that it received just shy of 20,000 visits. If you enjoy reading it, please share a link to it (or to this post); I’d like to see the traffic continue to grow.
Happy Holidays and best wishes for the New Year.
I recently stumbled upon this bill (Senate Bill 2269) introduced by Senator Rand Paul a couple months ago. It is a bill “[t]o permit voluntary economic activity.” Who isn’t in favor of voluntary economic activity?
The bill is entitled “the Anti-Trust Freedom Act of 2012.” But the bill probably should be named “A Bill To Repeal the Sherman, Clayton, and FTC Acts as to Individuals.” Because here is its full text:
The Sherman Act (15 U.S.C. 1 et seq.), the Clayton Act (15 U.S.C. 12 et seq.), and section 5 of the Federal Trade Commission Act (15 U.S.C. 45) shall not be construed to prohibit, ban, or otherwise extend to any voluntary economic coordination, cooperation, agreement, or other association, compact, contract, or covenant entered into by or between any individual or group of individuals.
I don’t know what motivated the introduction of this bill, nor do I understand why it’s limited to individuals. (I’d read the bill as not exempting corporations from the antitrust laws — Congress knows how to specify corporations when it wants to. But what if corporations and individuals conspire together? Are the corporations subject to antitrust laws, while the individuals are exempt? Would that make any sense? Since corporations can act only through individuals, does the bill by indirect implication exempt corporations, too?)
There are interesting and robust debates about whether there is too much, or too little, antitrust enforcement in the U.S. But this bill goes much further than anything I’ve recently seen (and I for one think it goes much too far). I suspect it’s not going anywhere, but in today’s difficult economic times, who knows for certain?
A short list of miscellany for the weekend.
On the “Lawyerist” blog, Kate Battle suggests that backlit computer monitors really don’t cause eyestrain. What does cause eyestrain is the fact that you tend to scroll text on the computer, so your eyes don’t move around much (and you often forget to blink). This is a fundamentally different way to read than reading old-fashioned paper.
On the IPKat blog, Neil Wilkof argues that some form of training in evaluating ethical matters may some day become a central part of IP.
Is Twitter’s influence on rhetorical style and culture good or bad? Maybe both. “The tweet is a literary form of Oulipian arbitrariness, and the straitjacket of the form has determined the schizophrenia of the content. A tweet is so short that you can get right to the point — but so short, also, that why should it have one? Twitter’s formal properties bend, simultaneously, in opposite directions: toward the essential but also the superfluous, the concise but also the verbose.”
Interesting post at thecontractsguy.net — a roundup of other articles on the changing nature of the business of law. ”There can be no doubt that the legal profession is going through a significant sea change. More than ever before, we’re facing pressures to continuously improve the efficiency and quality of our services, and most firms — maybe all firms — must innovate in order to survive.”