2012]
COPYRIGHT CONSPIRACY
165
system of secret shoppers to enforce their policy. If a retailer was found to have violated the policy, there was an “elaborate system of trial and appellate tribunals” to determine whether a retailer deserved punishment. 142 Upon discovering this system, the Federal Trade Commission brought an enforcement action under the antitrust laws and found FOGA to have violated Section 3 of the Clayton Act. 143 On appeal, the Supreme Court noted that “the combination is in reality an extra-governmental agency, which prescribes rules for the regulation and restraint of interstate commerce, and provides extra-judicial tribunals for determination and punishment of violations, and thus ‘trenches upon the power of the national legislature and violates the [antitrust laws.]’” 144 Objecting to the seizure of government-like authority by private industry, the Court found this agreement constituted a per se violation of the antitrust laws.145 Four years later, the Supreme Court reaffirmed the Fashion Originators’ Guild of America ruling in Associated Press v. United States. 146 The individual newspaper members of the Associated Press were required by the by-laws of their agreement to refuse to sell news to non-members and allowed current members to block potential new members from joining the group. 147 The Justice Department sued, arguing that the by-laws represented an illegal restraint of trade.148 Discussing the by-law provisions in elaborate detail, the Court noted that they “tied the hands of all of its numerous publishers, to the extent that they could not and did not sell any part of their news so that it could reach any of their non-member competitors.”149 Citing Fashion Originators’ Guild, the Court also held the AP by-laws, like the lumber dealers’ boycott before it, “trenches upon the power of the national legislature,” finding a per se violation of the Sherman Act. 150
142
Id. at 462. Id. at 463–64 144 Id. at 465. 145 Id. at 468. 146 Associated Press v. United States, 326 U.S. 1 (1945). 147 Id. at 4. 148 Id. 149 Id. at 13. 150 Id. at 19. 143