Berkeley Law | Class 278.001 | Spring Semester 2026

This seminar will present a selective overview of current topics at the intersection of copyright and antitrust law. From AI to streaming services and beyond, digital initiatives across industries increasingly implicate both of these complex legal regimes, rather than just one. Policy solutions to challenges presented by new technologies frequently reflect limitations imposed by antitrust and copyright working in tandem–or, occasionally, at cross-purposes. To consider legislative, regulatory, or judicial responses by reference to one body of law without the other is to ignore an entire category of essential constraints and opportunities.

In lieu of a final exam, students will draft an 8-10 page paper on a topic related to the subject of the course. Grades for the semester will be predicated 85-90% on the quality and thoughtfulness of that paper, with the remainder assessed by reference to the quality and thoughtfulness of each student’s participation in the course throughout the semester.

Office hours will be held virtually, at times to be announced periodically.

Here are the topics to be discussed in this course, week-by-week, along with required and optional readings for each class session:

Week 1 (January 13): Introduction & Overview

Topics to discuss:

  • Why think about the same technological, business, legal, and policy problems simultaneously from the perspective of copyright law and antitrust law?
  • When and where, if at all, do we see tension between the values and answers that copyright and antitrust, respectively, would bring to bear on a given problem?
  • High-level overview of the two legal regimes

Optional preparation:

WEEK 2 (January 20): Collective music licensing

PLEASE NOTE THAT THIS CLASS MEETING WILL BE REMOTE, VIA ZOOM

Topics to discuss:

  • Understanding the precedent addressing Sherman Act claims against “performing rights organizations”
  • Market definition in music rights antitrust cases
  • Current issues in music rights rate-setting proceedings

Required reading:

Optional reading:

Week 3 (January 27): Copyright & Generative AI: High-Level Issues

Topics to discuss:

  • How the technology works and why it implicates copyright issues
  • Frameworks for considering liability for infringing outputs
  • Copyrightability of generative AI-created outputs

Required reading:

Optional reading:

Week 4 (February 3): Copyright & Generative AI: In the Weeds

Topics to discuss:

  • Is it fair use to use copyrighted content to train a generative AI model?
  • Never, sometimes, always?
  • Does it matter what the model does?
  • Relationship between market failure and the fourth fair use factor analysis

Required reading:

Optional reading:

Week 5 (February 10): Antitrust & Copyright Misuse

Topics to discuss:

  • What is the difference between a refusal to license and copyright misuse?
  • In what respects might copyright misuse sweep more broadly than antitrust proper?
  • In the licensing context, when does the First Amendment–via the Noerr-Pennington doctrine–neutralize conduct that might otherwise be copyright misuse, an antitrust violation, or both?

Required reading:

Week 6 (February 17): Content Moderation & Platform Competition

Topics to discuss:

  • What problems are content moderation requirements for large-scale internet platforms ostensibly intended to solve?
  • Do content moderation requirements themselves create barriers to entry or otherwise impede competition? If they historically did will AI solve that problem going forward?
  • Should we think about content moderation requirements for copyright enforcement differently than content moderation requirements for false/defamatory/otherwise objectionable content?

Required reading:

Optional reading:

Week 7 (February 24): Web-Scraping and Section 1201

Topics to discuss:

  • What is an effective “access control” within the meaning of Section 1201?
  • Why and how does the statute distinguish between TPMs that effectively control access to copyrighted works and TPMs that protect the rights of a copyright owner?
  • When is fair use a defense to a Section 1201 claim?

Required reading:

Optional reading: