Document Type

Article

Publication Date

5-2025

Journal Title

Emory Law Journal

ISSN

0094-4076

Abstract

The U.S. government's antitrust actions against Big Tech have recently surged in response to the growing dominance of Amazon, Apple, Google, Meta, and Microsoft. In fall 2023, the Federal Trade Commission filed a controversial submission in response to the U.S. Copyright Office's request for comments on artificial intelligence (AI) and copyright. This submission hinted at the agency's eagerness to fully deploy its enforcement powers in the AI sector, including targeting AI developers that have used copyrighted works without authorization to train AI models.

This article examines the changing interface of antitrust and copyright law in the age of generative AI. It argues that this interface faces new complications in two directions: technological and ideological. Technologically, the structural elements antitrust law aims to regulate are key to the success of AI developers. Ideologically, antitrust law is now confronted with a shift from the once dominating Chicago School to the Neo-Brandeisian School. The article then highlights the oft-overlooked copyright's competition policy. It identifies several built-in procompetitive safeguards, such as fair use, the idea-expression dichotomy, the first sale doctrine, compulsory licenses, and the copyright misuse doctrine.

The second half of this article makes the case against antitrust intervention at this nascent stage of AI development. It discusses how such intervention could stifle the growth of the AI sector, change longstanding antitrust principles, upset copyright's internal balance and generate unintended global consequences. The article concludes with a five-pronged strategy for reconfiguring the antitrust–copyright interface and reducing the tensions between antitrust and copyright law.

First Page

847

Last Page

917

Num Pages

71

Volume Number

74

Issue Number

4

Publisher

Emory University School of Law

File Type

PDF

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