Promoting Access over Ownership: Realigning Antitrust and Intellectual Property Law to Usher in an Era of Collaborative Consumption

Adrian Kuenzler · 19 Vand. J. Ent. & Tech. 3

Abstract

Following the US Supreme Court’s endorsement of the promotion of consumer welfare as the single goal of antitrust and intellectual property laws, many courts have reasserted their commitment to the market access doctrine for antitrust and intellectual property law liability. These courts have rejected the Court’s submission in GTE Sylvania to adhere to a strict output/profitability test concentrating predominantly on the positive and negative welfare effects regarding allegedly infringing conduct. This Article examines several important antitrust and intellectual property law decisions and locates within them a common flaw to express an intelligible, distinct doctrinal function for giving precedence to market access, despite the courts’ implied ambition to do so. Courts following the market access framework rightly intuit that the conventional output/profitability test offers an inadequate foundation for assessing innovation or the promotion of progress in antitrust and intellectual property law cases. The contentious alternative approach of providing market actors with equal economic opportunities to participate in the competitive process that courts have proposed as a substitute, however, merely provides a formless and ill-justified doctrinal construction that frequently appears to coincide with the very same output/profitability framework it claims to discard. This Article seeks to transcend these deficiencies of the market access doctrine by finding a conceptually separate, normatively appealing function for the doctrine to be utilized within antitrust and intellectual property law: the market access doctrine should be based on important insights from cognitive psychological research with respect to the ways in which ordinary consumers evaluate innovation and progress.