Vol 7 No 1 - Roger Williams University School of Law

court recognized the copyright owner’s exclusive right to“sell, rent, lease, lend, or otherwise distribute copies of acopyrighted work,” and concluded that “Section 1 of theSherman Act does not entitle ‘a purchaser . . . to buy aproduct that the seller does not wish to offer for sale.’”Perhaps the most extensive analysis of the effect of aunilateral refusal to license copyrighted expression wasconducted by the First Circuit in Data General Corp. v.Gruman Systems Support Corp. There, the court notedthat the limited copyright monopoly is based on Congress’empirical assumption that the right to “exclude othersfrom using their works creates a system of incentives thatpromotes consumer welfare in the long term byencouraging investment in the creation of desirableartistic and functional works of expression . . . . Wecannot require antitrust defendants to prove and reprovethe merits of this legislative assumption in every casewhere a refusal to license a copyrighted work comesunder attack.” The court went on to establish as a legalstandard that “while exclusionary conduct can include amonopolist’s unilateral refusal to license a copyright, anauthor’s desire to exclude others from use of itscopyrighted work is a presumptively valid businessjustification for any immediate harm to consumers.” Theburden to overcome this presumption was firmly placedon the antitrust plaintiff. The court gave no weight toevidence showing knowledge that developing aproprietary position would help to maintain a monopolyin the service market in the face of contrary evidence ofthe defendant’s desire to develop state-of-the-artdiagnostic software to enhance its service and consumerbenefit.As discussed above, the Ninth Circuit adopted a modifiedversion of this Data General standard. Both courtsagreed that the presumption could be rebutted byevidence that “the monopolist acquired the protection ofthe intellectual property laws in an unlawful manner.”The Ninth Circuit, however, extended the possible meansof rebutting the presumption to include evidence that the