Copyright Exhaustion Rationales and Used Software: A Law and Economics Approach to Oracle v. UsedSoft

This article aims to provide courts and policymakers with an analytical framework that, building upon the traditional rationales of IP exhaustion doctrine, identifies factors which advocate for a modulation or flexibilization of the role of exhaustion in copyright law. Factors include (i) the personal features of acquirers of copies of copyrighted works, distinguishing between consumers and commercial users; (ii) whether post-sale restrictions have been adequately communicated to acquirers and have been agreed in the contract or license; (iii) the degree of complexity of the acquired goods and their prospects of productive uses and interoperability; (iv) the role of other exclusive rights in providing rightholders with indirect control over uses of the copies in the aftermarket; (v) the impact of post-sale restraints in preventing opportunism in long-term contracts and in reducing deadweight losses created by IP pricing; and (vi) the temporal scope of post-sale restraints. After setting out this analytical framework, the ECJ Judgement in Oracle v. UsedSoft is discussed.

Socialism and intrafirm asset allocation

We rely on a survey of Swiss firms to document deviation from first-best for reasons of internal 'fairness' when allicating resources. This 'socialist' practice is more widespread in smaller than in larger firms. It ignores the reputation and past performance of the managers who apply for dunding, but takes into account their hierarchical position and their past use of resources. Socialism is only partially explained by concerns about empire building and managerial optimism, and it is not meant to benefit shareholders.

Board Overlap, Seat Accumulation and Share Prices

We examine the board overlap among firms listed in Switzerland. Collusion, managerial entrenchment, and financial participation cannot explain it. The overlap appears to be induced by banks and by the accumulation of seats by the most popular directors. We also document that seat accumulation is negatively related to firm value, possibly because of the conflicts of interest that multiple directorships induce and the time constraints directors face. Contrary to popular beliefs, however, the directors of traded firms do not generally hold more than one mandate in other traded firms. They do hold multiple seats in non-traded firms.