The keepers of the gates: Intellectual property, antitrust, and the regulatory implications of systems technology

This Article identifies and analyzes an emerging trend in the legal regulat ion of high-technology industries. The Article begins by distinguishing bet ween conventional forms of computer technology and "systems technology," th e architectural technology that defines computing environments and determin es the products with which they can interface. It argues that a doctrinal s hift is occurring in the laws that regulate the competitive behavior of sys tems-technology innovators: a shift away from exclusionary entitlements and towards a system of liability-rule protections. As evidence of this shift, the Article examines recent legal disputes involving microprocessor techno logy and computer bus design. The Article then argues that the emergence of the doctrinal shift can be un derstood as a response to the particular characteristics of systems-technol ogy industries. Specifically, the combination of network externalities, int erconnectivity, rapid innovation, and excludability in these industries cre ates a situation in which conflicts over technological access are likely to occur. The same market characteristics suggest that protecting innovators' entitlements with liability rules is an appropriate method for resolving t hose conflicts, and that the doctrinal shift towards a liability regime may therefore be appropriate, despite its potential costs. Having examined the appropriateness of the shift from an economic perspecti ve, the Article next examines its appropriateness from a doctrinal perspect ive-that is, it examines whether the shift can be justified under the estab lished legal doctrines. It argues that a number of those doctrines support the movement towards liability rules, most notably the monopolization doctr ine and the common-carrier doctrine. The Article concludes by discussing the implications of its analysis for th e current litigation between the Justice Department and Microsoft Corporati on.