Taking Technological Infrastructure Seriously: Standards, Intellectual Property and Open Access

This paper introduces an ‘infrastructural approach’ to the problems of de facto and cooperative standard-setting in high technology. It reviews recent case law in the area, and attempts to provide robust economic arguments for the maintenance of ‘open access’ rules over such standards. First, it begins by qualifying such resources as technological ‘infrastructure’ according to the work of Brett Frischmann and Peter Lee. Subsequently, game theoretical tools are applied to the problem of cooperative standard-setting to demonstrate how the ‘quasi-open access’ FRAND commitment can constrain strategic behaviour. A legal analysis—including an examination of recent case law about the availability of injunctions—then follows to demonstrate the optimal ‘negotiation framework’ for the latter commitment to become credible. Finally, the infrastructural approach is expanded to demonstrate how it can elucidate a number of current controversies in high technology markets, where the tension between private ownership and public use of technological infrastructure is at its sharpest.