Antitrust and Unfair Competition Law

Competition: Spring 2014 Vol. 23, No. 1



Richard Epstein1


One of the most vexing challenges to any legal system is to answer this question: Should established legal principles be modified with the advent of new technologies that in turn require the creation of new property rights? The trivial answer is simply "yes." It is a commonplace observation that the creation of new property rights regimes is often dependent upon the creation of new technologies. For example, no one was in a position to ask who owned the electromagnetic spectrum—at least at invisible frequencies—until the technology became available to exploit it. But once communications through the spectrum became possible, someone had to organize it, lest physical interference in the use of frequencies render it useless for all concerned. Does this new generation of regulation pose a problem for the protection of speech under the First Amendment? Does it, for that matter, pose any difficulties under conventional conceptions of the antitrust law? After all, any exclusive system of property rights in the spectrum necessarily blocks the speech rights of all individuals except for that favored owner.

The answer to these and similar questions does not depend on the novelty of, for example, spectrum, for the same answer could also be made with respect to land. As Pierre-Joseph Proudhon famously observed, "property is theft"2 because its creation limits the rights of non-owners to access land as they could have before it was reduced to private ownership. Whether Proudhon’s observation is false, it does not carry the weight that he sought to attach to it with either land or the electromagnetic spectrum. In both instances, if you leave property in a commons, no individual is in a position to exploit it. Allow the first possessor to make exclusive use of it, and, for example, agriculture and manufacturing become possible. Other individuals can reduce other parcels of land to private possession, and the persons who start out without property can acquire wealth by labor or land by purchase.

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