High transaction costs incurred in the licensing of intellectual property create a pressure on legal principles ranging from the fair use doctrine of copyright law to the tying doctrine in antitrust law. It appears, with some exceptions, that antitrust law is imposing excessive restrictions on the licensing of intellectual property. The effect of these restrictions, combined with the high transaction costs inherent in the licensing of intellectual property, is to prevent the maximally efficient allocation of IP resources.
Hon. Richard A. Posner, Transaction Costs and Antitrust Concerns in the Licensing of Intellectual Property, 4 J. Marshall Rev. Intell. Prop. L. 325 (2005)