A Three-Tiered Public Policy Approach to Copyright Misuse in the Context of Tying Arrangements

October 1, 2013

Over two decades since the copyright misuse doctrine was first recognized in Lasercomb America, Inc. v. Reynolds, a uniform approach for determining whether a specific behavior constitutes misuse still does not exist. Circuit courts have commonly applied two competing approaches to the misuse analysis. One approach centers on the public policy underlying copyrights; the other approach centers on antitrust principles. This Note explores relevant jurisprudence and elucidates the shortfalls of each approach. It then proposes a compromise that underscores the interplay between copyright and antitrust laws. The proposed resolution aims to provide a much–needed uniform misuse analysis that does not overlook the important policies underlying copyright law, or disregard antitrust principles relevant in the context of tying arrangements.

October 2013

No. 1