Letter from FTC Chairman Robert Pitofsky to Tech Law Journal.
Re: Tech Law Journal story published on November 15, 1998.
Date: November 27, 1998.
Source: The original letter is on file at Tech Law Journal.  This document was created by scanning the original and converting it into HTML. The seal on the letterhead and Chairman Pitofsky's signature are not reproduced in this document.

November 27, 1998

David Carney
Tech Law Journal
P. 0. Box 15186
Washington, D.C. 20003-0186

Dear Mr. Carney:

I almost never complain about reports or interpretations of my remarks in the press. Nevertheless, the misinterpretations and distortions of my views in your recent article in the Tech Law Journal are so extreme that I thought I ought to call them to your attention.

I realize that it is difficult to transcribe with perfect accuracy off the cuff remarks, without a printed text, in an area as complicated as antitrust policy. Even in that context however, your report was exceptionally wide of the mark. Let me give you a few among many examples.

You wrote that I rejected the legal argument by Intel that "exercise of valid intellectual property rights do not amount to antitrust law violation." But I was at pains in my opening remarks to point out that I was not talking about any case but rather about general antitrust principles. I never rejected any "Intel argument." You also say that I reported myself as "not entirely comfortable" with the idea that intellectual property is property. I believe I said there are reasons to believe that "intellectual property" is entitled to greater protection under the antitrust laws in order to preserve incentives for innovation. I am afraid you got the intellectual property point exactly wrong.

Second, you say that I refer to the Court of Appeals "with disregard" - calling the recent Microsoft decision something "in the literature a phrase more commonly used to describe any article in a law school publication," Actually, your own quote shows that what I was saying is that a particular point had been made in the literature and in the Court of Appeals opinion as well. I did suggest that in that case (Microsoft), given that set of legal issues (alleged tie-in sales) and those facts, that some sort of balancing process between efficiencies and anticompetitive effect is justified. That is a far cry from treating any Court of Appeals' decision "with disregard."

Finally, I don't believe I can fairly be interpreted as arguing "for a greater role for antitrust regulators in high-tech industries." To say as I did that there ought to be "fairly careful oversight" is to suggest that the antitrust role is roughly the same - not different between high-tech and low-tech industries.

I hope this clarifies my remarks.

Very truly yours,

 

Robert Pitofsky