Chaptr 25 offers a survey of the many ways in which antitrust and competition law affect IP licensing transactions. It begins with a brief overview of US antitrust law and enforcement and distinguishes between per se liability and liability under the rule of reason. It then considers how antitrust authorities have viewed IP transations, beginning with the Nine No-Nos (1970) and more recent agency pronouncements. The chapter then describes specific antitrust doctrines that impact IP transactions: price fixing, market allocation (US v. Topco), resale price maintenance (Leegin v PSKS), tying (Siegel v. Chicken Delight), monopolization (Illinois Tool Works v. Indep. Ink), refusals to deal (The Movie 1 & 2), standard setting (Allied Tube v. Indian Head), reverse payment settlements (FTC v. Actavis).

In the US, consent judgments, decrees, or orders entered into between merging parties and government are a longstanding tradition. There are three key components to such consensus-based remedies. First, the remedies are not truly a consensus. The second notion is one of transparency: the remedies proposed in such settlements are made public. The nature of the theories of harm the remedies seek to mitigate are public as well. The third notion is typically a question of the overall merits of the remedy. Whether or not a merger remedy is in the public interest is a broad question. This chapter details the common provisions of the Department of Justice and Federal Trade Commission’s settlements, alongside the EU Commission’s settlements. It looks for common weaknesses between the methods of settlement deployed, and the harms to competition that might arise from such systems. It concludes that competition policy is increasingly regulatory and non-adjudicatory. To the extent that consent settlements are important and prominent, it would make sense to have stakeholders have some significant say in the settlement. Lack of meaningful judicial review assures that any concerns are ignored. The authors critically note that lack of transparency assures that any concerns not listed in the proposed settlement are not properly addressed.

The chapter discusses the structure of public enforcement in the US antitrust system, with particular emphasis on the use of civil sanctions in public enforcement of laws governing marketplace competition, and a focus on civil sanctions under the Sherman Act, FTC Act, and parallel state law in the United States. It then argues that the use of civil sanctions in public enforcement is inextricable from the supporting remedial structure, including criminal enforcement and meaningful private enforcement. The chapter explains the theory of civil fines in law enforcement and reasons for a jurisdiction’s choosing one or the other form of sanctions. It then explains the structure of remedies for antitrust violations in the US system, highlighting the three forms of public enforcement and the backstop of private enforcement. It then turns to recent developments in civil remedies, including punitive fines as well as damages and related civil monetary relief. It criticizes the Third Circuit Court of Appeals decision in Abbvie Inc. and interrogates the current Supreme Court case involving AMG Capital, inquiring whether AMG Capital might influence the interpretation of the FTC Act as it applies to competition law enforcement as well as consumer protection enforcement.

This chapter addresses the Federal Trade Commission’s Nixing the Fix report, assessing both its promises and its limitations.

This chapter considers how the set of tools provided by consumer protection law can push back on repair restrictions. Consumer protection law is designed, in part, to ensure the accuracy of information in the marketplace. But even in absence of outright deception, it recognizes the need to prohibit unfair practices that take advantage of the natural information asymmetries that sellers enjoy. It also offers remedies when products fail to live up to minimal, baseline guarantees of quality. Although consumer protection cases rarely lead to dramatic, structural remedies,the law profoundly influences marketplace behavior and can improve the day-to-day experiences of consumers seeking repair.

The mishandling of personal data by firms like Facebook, Yahoo!, Macy’s and Target has given rise to heightened public concern regarding consumer data privacy and protection, particularly when genetic and health information are implicated. Responding to these concerns, DTC genetic testing services such as Ancestry.com have publicly stated that “You always maintain ownership of your data.” These DTC services thus join a growing chorus calling for the recognition of personal property rights (ownership) in individual health data. But recognizing property in genetic data would represent a significant departure from current U.S. law and give individuals powerful rights to control, and exclude others from using, information that has significant value for biomedical research and public health monitoring. And in the context of DTC genetic testing, property rights in resulting data are largely unnecessary, as the use of such data is almost always covered by binding contractual arrangements that can limit undesired use and dissemination. Accordingly, this chapter argues that, given existing contractual, regulatory and liability regimes, data propertization is unnecessary in the context of DTC genomic testing, and should be avoided in the broader healthcare context as well.

Most of the existing privacy and security legal frameworks at both the federal and state level provide incomplete safeguards against many of the privacy and information security harms highlighted in earlier chapters. Many of these frameworks have long been critiqued by privacy law experts for their lack of effectiveness. The IoT amplifies these inadequacies as it compounds existing privacy and security challenges.

At the state level, the patchwork of privacy and security legislation creates varying obligations for businesses without consistently ensuring that individuals receive adequate privacy and cybersecurity protection. State legislation also suffers from several shortcomings and is often replete with gaping privacy and security holes. Even the CCPA, the first privacy statute of its kind in the United States, has several limitations. Further, varying state privacy and security legislation also enables unequal access to privacy and security between citizens of different states.