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The promotion of competition in the American economy is a task that has traditionally fallen to the enforcement agencies at the federal and state level, relying on the main antitrust statutes. However, the challenge of declining competition has also prompted interest in the use of regulatory alternatives to antitrust to "catalyze" competition. The strategy involves using industry-specific statutes, rulemakings, or other tools of the regulatory state to achieve the traditional competition goals associated with the antitrust laws. Hence, "antitrust via rulemaking." This paper has two goals. The first goal is to better describe the regulatory tools used by agencies and government – the so-called "competitive catalysts." This paper attempts to develop both a vocabulary and basic theoretical account that helps to understand how rulemaking can promote competition. It does so by providing a taxonomy of major tools used to catalyze competition. A second goal of the paper is the admittedly difficult goal of trying to understand why some competition initiatives have worked, while others fail. As these are highly complex industries and regulatory initiatives, any such analysis cannot be definitive. Nonetheless, a study of the efforts to jump-start competition yields patterns from which best-practices might be derived, and from which any future regulator should learn. The paper concludes with a list of best-practices or rules-of-thumb for those who would hope to use laws to catalyze competition in the future.

Ours is often called an information economy, but at a moment when access to information is virtually unlimited, our attention has become the ultimate commodity. In nearly every moment of our waking lives, we face a barrage of efforts to harvest our attention. This condition is not simply the byproduct of recent technological innovations but the result of more than a century's growth and expansion in the industries that feed on human attention. Wu's narrative begins in the nineteenth century, when Benjamin Day discovered he could get rich selling newspapers for a penny. Since then, every new medium – from radio to television to Internet companies such as Google and Facebook – has attained commercial viability and immense riches by turning itself into an advertising platform. Since the early days, the basic business model of "attention merchants" has never changed: free diversion in exchange for a moment of your time, sold in turn to the highest-bidding advertiser. Full of lively, unexpected storytelling and piercing insight, The Attention Merchants lays bare the true nature of a ubiquitous reality we can no longer afford to accept at face value. ; https://scholarship.law.columbia.edu/books/1063/thumbnail.jpg

This paper reviews the literature related to the properties of information and legal implications of same, making three observations: First, scholars have extended a public good model of information to an ever-increasing number of fields where law and information intersect. An incomplete list includes intellectual property, securities regulation, contract theory, consumer protection, communications, and the study of free speech. Second, scholars have sharply questioned whether, in practice, information actually has the characteristics of a public good. In particular, the claim that information is intrinsically impossible to exclude non-payers from has no clear basis, a fact that potentially undermines theoretical support for some forms of government intervention. A closer look suggests that context, subject matter, and industry structure tends to yield great variation in how much intervention really is required to ensure adequate production or dissemination. This tends to support the existence of dynamic legal regimes attuned to differences in subject matter or perhaps industry structure. Third, the review questions if the public good concept, while well-established, ought really be the exclusive focus of the economic and legal understanding of information. The article closes by considering other, less investigated, but potentially important, properties of information that have not received as much scholarly attention.

While the history of governmental regulation of communication is at least as long as the history of censorship, the modern regulation of long-distance, or "tele," communications is relatively short and can be dated to the rise of the telegraph in the mid-19th century. The United States left the telegraph in private hands, unlike countries and as opposed to the U.S. postal system, and has done the same with most of the significant telecommunications facilities that have been developed since. The decision to allow private ownership of telecommunications infrastructure has led to a rather particularized regulation of these private owners of public infrastructure – similar to other laws governing "regulated industries," yet also influenced by the U.S. First Amendment and antitrust law.

Making authors the masters of their own destiny has long been a stated aspiration of copyright. Yet more often than not, the real subjects of American copyright are distributors – book publishers, record labels, broadcasters, and others – who control the rights, bring the lawsuits, and take copyright as their "life-sustaining protection." Much of modern American copyright history, and particularly its legislative history, revolves on distributors either demanding more industry protection or fighting amongst themselves. It is distributors who make the great financial investments in copyrighted works, and distributors who arguably most need the incentives and protections that the system is designed to provide. What then is the distinct role, if any, of the author in the copyright system? Why have an authorial copyright – a copyright that vests rights in authors? Here I suggest a new defense of authorial copyright. The reason is to encourage not just writing, but the invention of new types of writing. Stated otherwise, authorial rights may help support not just competition in the market, but for the market. Such rights, I argue here, can act as a means of seeding new types of creative works, as well as new modes of producing creative works, and new entrants into dissemination. On the aggregate, giving rights to authors can make the monopoly-prone creative industries more decentralized and open to market entry.

In 1994, when most of the world's trading nations agreed to create the WTO, they also agreed to begin to liberalize trade in services. What no one fully realized at the time (and not all realize now) is that those decisions placed the WTO in the midst of internet regulation. Much internet content can be reached from anywhere, making nearly everyone on the internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the internet. Over the last five years, national governments have begun to impose more controls over the internet – in particular, filters that keep certain forms of applications or content out. The inevitable effect is to create barriers to trade in services. Countries have filtered or blocked internet imports without seeming to think twice about the consistency of such actions under WTO law. More such practices will fall under WTO scrutiny in the years ahead. For the most part, WTO oversight will be invisible. Yet in other areas the influence of the WTO will no doubt help shape the future of international internet transactions – and the internet itself. In its introduction to problems of trade in internet-based services, this paper focuses on two cases: one a country and one a product. The national study is of China, among the world's more comprehensive internet regulators. China makes for an interesting case because as a condition to accession to the WTO, it agreed to what has been called "radical" reform of its service practices. Yet at the same time China is among the world's more active filterers of internet services. As we shall see, these two positions are in tension, and while WTO law leaves much room for exceptions, some of China's restrictions may not be easily justifiable under the GATS. The second study is of the company Skype, a provider of voice over Internet services. Skype offers free voice telephone services to anyone with an internet connection. As a consequences, incumbent telephony carriers, often state-owned, have a strong competitive interest in preventing Skype from reaching their customers. The instances of Skype blocking in several countries raise interesting trade in services issues. This paper is meant for two audiences. For those within the world of trade law it clarifies how internet services have leapt beyond what was contemplated in GATS or subsequent telecommunications agreements. The universalization of a network that is a platform for any type of service requires new thinking about how barriers may come about, and how sectoral commitments are interpreted. For those within the world of telecommunications or internet law, this paper introduces the relevance of WTO law to national regulation of internet services. One of the most interesting consequences may be a tempering of what we might call the "Yahoo! Presumption"; that is, the presumption that the burden lies with internet companies to adapt to national legal systems. While still generally true, the tendency in WTO jurisprudence is to put the burden on national governments to justify internet blocking.

The best proposals for network neutrality rules are simple. They ban abusive behavior like tollboothing and outright blocking and degradation. And they leave open legitimate network services that the Bells and Cable operators want to provide, such as offering cable television services and voice services along with a neutral internet offering. They are in line with a tradition of protecting consumer's rights on networks whose instinct is just this: let customers use the network as they please. No one wants to deny companies the right to charge for their services and charge consumers more if they use more. But what does need to be stopped is raw discrimination that is nothing more than a tax on innovation taken by government-supported corporations.

Consider the following events, all from the last five years: (1) An American newsmagazine, Barron's, posts an unflattering profile of an Australian billionaire named Joseph Gutnick on its web site – the publisher, Dow Jones, Inc., is sued in Australia and forced to settle; (2) Mexico's incumbent telephone company, Telmex, blocks Mexicans from reaching the web site of the Voice-over-IP firm Skype; (3) the United States begins a major crackdown on web gambling services, causing serious economic damage to several small Caribbean economies; (4) the Chinese government prevents its citizens from using various foreign Internet services, including foreign e-mail and certain foreign news sources, and requires foreign search engines and blog sites to filter unwelcome content; (5) France orders the American auction site Yahoo to take down its Nazi-glorifying paraphernalia. These disputes are well-known to those who study the Internet's international controversies. But not everyone realizes that these controversies are also forms of trade disputes, and, as such, no one yet fully understands how the law of the World Trade Organization ("WTO") might affect them. The purpose of this paper is to investigate that question. In 1994, when most of the trading nations in the world agreed to create the WTO, they also agreed to try to liberalize trade in services. At the time, no one fully realized (and not all notice now) that the decision to liberalize trade in services put the WTO in the midst of Internet regulation in an interesting and unexpected way. Much Internet content can be reached from anywhere, making nearly everyone on the Internet a potential importer or exporter of services (and sometimes goods). Hence, almost by accident, the WTO has put itself in an oversight position for most of the national laws and practices that regulate the Internet. The hard question is when does Internet filtering violate world trade rules? Filtering often represents political censorship, and it is sometimes said that neither the General Agreement on Tariffs and Trade ("GATT") nor the General Agreement on Trade in Services ("GATS") was meant to make censorship illegal – for the nations of the world do routinely censor or block products at their borders generally without creating trade disputes. But it also cannot be right that any protection labeled censorship is exempt from the World Trade Law – the GATS itself suggests as much. Leaving censorship aside, it is also true that some Internet filtering, like the blocking of lnternet-based telephony discussed within, seems to have little to do with political control and much more to do with the protection of domestic incumbents. Such measures seem destined for increased scrutiny over the coming decade.

This essay proposes a new way to assess the desirability of intellectual property rights. Traditionally, intellectual property assignment is assessed based on a incentive/monopoly pricing tradeoff. I suggest they should be further assessed by their effects on the decision architectures surrounding the property right – their effects on how firms make product innovation decisions. The reason is that different decisional structures for product development can be are fundamental to the performance of firms, industries, and even the economy as a whole. The organizational economics literature can help with this assessment. It makes an important and useful distinction between hierarchical (centralized) and polyarchical (decentralized) decision architectures. The key point of this paper is that government's decisions with respect to property assignments can steer decision architectures toward a polyarchical or hierarchical architecture, respectively.

Over the last decade, writers begun to try and understand the other side of copyright, sometimes called its competition policy, communications policy, or regulatory side. This paper focuses attention on a crucial problem familiar to antitrust courts that is becoming more clearly important to copyright decisions. In both copyright and antitrust, a central question is how important intent is. Judges, stated slightly differently, face a choice between what we can characterize as the bad actor and welfarist models of deciding cases. What we can call the bad actor approach punishes alleged wrong-doers based on the mens rea of the suspect, and the prospect of harm to favored sectors of the economy, like small businesses (in antitrust) or the entertainment industries (in copyright). A second, or welfarist approach calls for judges to generally ignore intent or bad behavior in exchange for a more disciplined focus on questions of industry economics and consumer, or user welfare. Over recent years the Supreme Court has steered copyright doctrine closer to an intent or bad actor premised analysis. While politically attractive, the long term effects of this approach can be expected to be pernicious.