Volume 2013, No. 2

Symposium Issue — Thirty Years of Comparative Institutional Analysis: A Celebration of Neil Komesar The Logic of the Law and the Essence of Economics: Reflections on Forty Years in the Wilderness By Neil Komesar In …

Copyright and Innovation: Déjà Vu All Over Again

Randal C. Picker

This is the third and final piece in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”

The history of copyright and technology is one of conflict as each new means of distribution has emerged. We have seen this repeatedly with piano rolls, the phonograph, radio, TV, cable TV, and, perhaps most recently, the Internet. As has been noted before by me and others, copyright law establishes the framework in which new tools of distribution can be introduced. Copyright can kill technology, as perhaps occurred with digital audiotape and the Audio Home Recording Act of 1992. And copyright itself can be changed to make possible entry as occurred when statutory licenses were introduced to deal with Aeolian’s possible piano roll monopoly and to make possible the rise of cable television.

Michael Carrier considers this pattern again in his piece, “Copyright and Innovation: The Untold Story,” where he focuses on the rise and fall of Napster. Through a series of interviews with industry participants, Carrier argues that the technology industry—meaning here the entrepreneurs and their venture capital financers—reduced its efforts at producing new music innovations in response to litigation over Napster.

Professor Randal C. Picker is James Parker Hall Distinguished Service Professor of Law at The University of Chicago Law School and Senior Fellow at The Computation Institute of the University of Chicago and Argonne National Laboratory.

When You Let Incumbents Veto Innovation, You Get Less Innovation

Mike Masnick

This is the second piece in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”

Innovation is a difficult thing to measure or spot at the moment it is occurring. There are so many moving variables, and any innovation, inevitably, unseats an incumbent of some sort, and often that incumbent fights back against innovation, sometimes making compelling arguments that the innovation will cause more harm than good. But holding back innovation is rarely an effective long-term strategy. At the moment innovation occurs, it is often derided, and rarely is it seen for the benefits that eventually emerge. Measuring it directly is equally troublesome.

Mike Masnick is Founder and CEO of Floor64 and Founder and Editor in Chief of Techdirt.

Debunking the “Stifling Innovation” Myth: The Music Business’s Successful Transition to Digital

Steven M. Marks
This is the first in a series of responses to Professor Michael Carrier’s article, “Copyright and Innovation: The Untold Story.”

In his article “Copyright and Innovation: The Untold Story,” Professor Michael Carrier reflects a common misunderstanding of the role of copyright in society, the relationship between technology and copyright, and the role of record companies as innovators. He also ignores evidence of how new consumer offerings during the last decade have flourished compared to the static options available to music consumers during the half century before that time.

Attorney Steven M. Marks serves as Chief, Digital Business & General Counsel for the Recording Industry Association of America.

Heterogeneity, Legislative History, and the Costs of Litigation: A Brief Comment on Bruhl’s “Hierarchy and Heterogeneity”

Anuj Desai

Should lower federal courts rely on legislative history as a source of interpretive authority in statutory cases? And, should the answer to that question depend on a different weighing of factors than answering the same question as to the United States Supreme Court? These are two of the normative questions that Aaron-Andrew Bruhl raises in his recent Cornell Law Review article “Hierarchy and Heterogeneity: How to Read a Statute in a Lower Court.” 97 Cornell L. Rev. 433 (2012). In addressing these questions, Bruhl argues that “[s]tatutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court.” [. . .]

In this brief Comment, I want to make two points. First, to weigh the merits of Bruhl’s ideas, we need to know the answer to the descriptive question that parallels the normative one: Are the lower federal courts in fact using legislative history? Second, if one of the principal arguments that “hierarchy” matters is that courts at different levels have different decisional capacities (such as resource differences), Bruhl’s argument depends, at some level, on empirical assumptions about the actual costs of both researching legislative history and litigation generally.

Professor Desai is Professor of Law at the University of Wisconsin Law School. The author also currently serves as a part-time Commissioner at the Foreign Claims Settlement Commission, United States Department of Justice, Washington, D.C.