Berkeley Law | Class 278.001 | Spring Semester 2025

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:

PLEASE NOTE THAT THE FIRST CLASS MEETING WILL BE TUESDAY, JANUARY 28

Week 1 (January 28): 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 (February 4): Collective music licensing

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 (February 11): 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 18): 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 25): 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 (March 4): 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 (March 11): Tying in Content Industries

Topics to discuss:

  • What is the harm to competition that tying doctrine seeks to prevent?
  • Does tying doctrine tend to condemn too little conduct that is anticompetitive, too much conduct that is not anticompetitive, both, or neither?
  • For tying arrangements that are likely to be pro-competitive, is there something wrong with using section 1201 of the Copyright Act to enforce them? If so is the concern that section 1201 is used to enforce “tying” arrangements that are unlikely to be pro-competitive?

Required reading:

Optional reading:

  • Erik and Herbert Hovenkamp, “Tying Arrangements,” (April 10, 2017), The Oxford Handbook of International Antitrust Economics
  • Briefing on Motion to Dismiss, United States v. Live Nation, case no. 1:24-cv-03973 (S.D.N.Y.)