My Reply to Access Copyright's Submission about Transactional Licenses

On Tuesday, I submitted my Reply to Access Copyright’s (AC) submission regarding the AUCC Application to compel AC to grant transactional licenses. In my previous submission I pointed out that while the AUCC correctly diagnosed some of the problems, it asked to Board to prescribe the wrong remedy. I also explained why the conduct that the AUCC complained about might run afoul the Competition Act.

AC responded on July 8. Basically, AC’s response boiled down to four themes:

“I didn’t do it”: flatly denying any wrongdoing without providing any evidence or theory to refute the evidence-based allegations made against it;
“I’m entitled to do it”: maintaining that it and its affiliates are entitled to engage in the acts complained;
“No-one can touch me”: asserting that the Board has no jurisdiction to regulate these activities and that they are also immune from scrutiny under the Competition Act; and
“I’m a victim”: accusing everyone else of making false accusations and conspiring against it.

My reply responds to these issues. Obviously, I disagree with AC on most issues (but certainly not all). Howard Knopf writes that my reply is an “important submission that should be read by all copyright law and competition lawyers and particularly by anyone interested in how these two areas of the law interact.” I’m happy to agree.

The AUCC submitted its own reply to AC’s submission (see submission and appendices). Notably, the AUCC for the first time recognizes that the competition law may be on its side, which is a good development. Interestingly, the AUCC made no comment about my proposed remedy. It only said that it “makes no reply to Access’ response to Professor Katz’s suggested remedy …”. Since my earlier submission revealed some disagreement between the AUCC and I about the proper remedy, it would have been interesting know what the AUCC’s position on my proposed remedy is.