Essential Facilities, Infrastructure, and Open Access*
Working Draft for DOJ/FTC Hearings. Do Not Cite without Permission of Authors. Essential Facilities, Infrastructure, and Open Access* Brett Frischmann+ & Spencer Weber Waller++ I. INTRODUCTION There is a debate raging concerning the merits of private control over (or conversely, open access to) various types of resources. Treating something as private property grants the property holder the right to exclude others. Treating something as infrastructure or a commons conversely welcomes all users on a nondiscriminatory basis. The battle over which regime best serves society’s interests exists in numerous areas of the law including land use, intellectual property, regulated industries, antitrust, and most aspects of law and economics. It is currently in vogue to propertize, privatize, and deregulate legal regimes under a variety of rationales all connected with maximizing wealth, supporting price discrimination, promoting allocative efficiency, and internalizing externalities. In intellectual property law, these issues are most prominent in contemporary debates over * © 2006 Brett Frischmann & Spencer Waller. + Assistant Professor, Loyola University Chicago. Thanks to Michael Carrier, Michael Jacobs, Mark Lemley, Christopher Leslie, Frank Pasquale, Phil Weiser and Joshua Wright for their comments on earlier versions of this article. ++ Associate Dean for Faculty Research and Director, Institute for Consumer Antitrust Studies, Loyola University Chicago. Thanks to Lindsay Frank and Jackie Clisham for her research assistance with this project. 1 Working Draft for DOJ/FTC Hearings. Do Not Cite without Permission of Authors. the continued expansion of intellectual property rights.1 The conflict over access and exclusion is a central, persistent feature of intellectual property law. Those who create, invent, innovate, and participate in similar intellectually driven, productive activities often borrow from or share with others.
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