The Copyright Misuse Doctrine's Role in Open and Closed Technology Platforms

Abstract

A platform owner who sells copyright-protected software bundled with hardware essentially locks up a user’s choice of technology platforms. As a company becomes more entrenched in a market, the company has a greater ability (and incentive) to close off proprietary environments, usually through the use of boilerplate contracts. By restricting a consumer’s purchase of a technology to its post-combination product, the company raises market entry thresholds and pushes smaller innovators out of the market. The recent Apple, Inc. v. PsyStar Corp. case highlights this trend in action. Apple combines its operating system, Mac OS X, with various hardware configurations that are then sold directly to the end user. Even though Apple distributes full copies of its operating system by itself, under the banner of an upgrade, it contractually precludes any user of the software from installing it - or any other copies of Mac OS X - on anything but Apple-branded hardware. This Article explains why courts should consider re-aligning the copyright misuse defense in light of the intellectual property rights spectrum. It first defines the concept of a platform in today’s high technology world and then weighs the differences between open and closed platforms. This Article argues that open platforms not only increase innovation, but are more in-tune with the doctrinal purposes of the respective intellectual property regimes. Next, this Article evaluates the creation and evolution of copyright misuse, including a look at the origins of patent misuse and the entangled history of antitrust, patent misuse, and copyright misuse. This Article concludes by considering how a re-aligned copyright misuse doctrine in today’s technological world might restore both the balance between the intellectual property regimes and the balance between intellectual property creators and intellectual property consumers.