Jeffrey K. MacKie-Mason

What to do About Unilateral Refusals to License? (Download full paper)

Jeffrey K. MacKie-Mason

Published on: January, 2002

Abstract: There are well-known circumstances under which unilateral refusals to license will cause harm to competition, that is, will lower consumer welfare. However, when the strategy is profitable, refusals to license also increase the returns to intellectual property, and thus limitations on them will reduce the incentives for firms to invest in innovation. The optimal balance between innovation incentives and protection against static monopoly harm is not knowable to any reasonable degree of precision. Economists may be able to identify some special cases in which the desired rule is unambiguously knowable, but these cases will be few. Given a policy or legal rule, economists can help interpret and apply the rule. Analysis of recent legal statements on the treatment of refusals to license shows that some of the current confusion and frustration in this area can be attributed to failure to formulate the rules in terms of the economic purposes of the underlying statutes. Some attempts to delineate a boundary between cases in which intellectual property protection is absolute and those in which antitrust restrictions may be imposed are based on logical or semantic distinctions that are not related to the economic issues. These attempts will fail to resolve the confusion.

Exercising Market Power in Proprietary Aftermarkets (Download full paper)

Borenstein, Severin, Jeffrey K. MacKie-Mason and Janet S. Netz

Published on: January, 2000

Abstract: In many recent antitrust cases, manufacturers of complex high-technology equipment have been accused of exercising market power in the sale of proprietary service or parts necessary to maintain the machines they produce. The manufacturer generally concedes that it has market power in selling the aftermarket service or parts, but argues that it would not exercise such power because high aftermarket prices would cause consumers to select a different brand in the competitive market for the original equipment. We study the incentive to exercise market power in aftermarkets when the original equipment market is perfectly competitive, a differentiated duopoly, or monopolized. In all cases, we show that the price in the aftermarket will exceed marginal cost. Furthermore, our analysis indicates that aftermarket prices may actually be higher when the equipment market is more competitive. Nonetheless, we suggest that in a richer model P in which equipment sellers might want to price discriminate, create barriers to entry, or influence the pace at which users upgrade to newer models P firms in less competitive equipment markets are likely to have a greater incentive to maintain a monopoly position in the sale of their aftermarket products.

Links Between Vertically Related Markets: ITS v. Kodak (Download full paper)

MacKie-Mason, Jeffrey K. and John Metzler

Abstract: In 1987 seventeen small companies filed an antitrust lawsuit against the Eastman Kodak Corporation, alleging that Kodak used its monopoly power over repair parts for its high-volume copiers and micrographics equipment in order to monopolize the service markets for those machines. Eleven years later, there have been two District Court opinions, two from the Ninth Circuit Court of Appeals, and one from the Supreme Court, and further post-trial, post-appeal disputes continue. Since the initial Supreme Court opinion in Kodak, there have been at least seven closely related Appeals Court opinions, and they stand in sharply divided conflict. Kodak is one of the most significant antitrust cases of the last decade or two. It is also one of the most controversial, and the controversy is far from resolved. We review the facts and the procedural history. We then present the main economic issues in dispute, and summarize the evidence presented at trial. We close with brief observations on some unresolved question that affect future antitrust economic analysis, and describe the post-Kodak conflict among other Circuit Courts of Appeal.