Response to Sanders: Ma’iingan as Property

Matthew L.M. Fletcher & Nicholas J. Reo

This is a reply to Jason Sanders’s student comment, Wolves, Lone and Pack: Ojibwe Treaty Rights and the Wisconsin Wolf Hunt, 2013 Wis. L. Rev. 1263.

Professor Matthew L.M. Fletcher is Professor of Law, Michigan State University College of Law, and Director of the Indigenous Law and Policy Center, and an Enrolled Member of the Grand Traverse Band of Ottawa and Chippewa Indians. Professor Nicholas J. Reo is Assistant Professor at Dartmouth College in the Native American and Environmental Studies Departments. Professor Reo is also an Enrolled Member of the Sault Ste. Marie Tribe of Chippewa Indians.

Reforming Software Claiming

Shubha Ghosh

This is Professor Ghosh’s reply to Mark A. Lemley’s article, Software Patents and the Return of Functional Claiming, 2013 Wis. L. Rev. 905.

The subject of Professor Lemley’s article, software patents, is timely and of social relevance. Software is everywhere, serving as tools to control and direct the flow of information and as modern-day gears and pulleys to operate everyday consumer products. As a critical input to many aspects of our contemporary life, the ability of a company to exclude others from software raises questions about the competitiveness and innovativeness of many industries. Since the 1960s, software patents have been a source of suspicion among those who want to keep software out of the clutches of big business.

Professor Shubha Ghosh is the Vilas Research Fellow & Professor of Law at the University of Wisconsin Law School.

Copyright and Innovation: Responses To Marks, Masnick, and Picker

Michael A. Carrier

This is Professor Carrier’s reply to the series of responses for his article, “Copyright and Innovation: The Untold Story”, published in WLR Online Issues 4-6.

I begin by noting how Marks’s response overemphasizes old business models and insufficiently appreciates the synergy between technological and creative innovation, while offering an ironically upbeat assessment of new technologies the record labels tried to quash and a newfound unsupported interpretation of the Constitution. I then explain how Picker’s emphasis on an ideal solution that would maximize copyright-related distribution innovation runs aground on the realities of copyright enforcement today. Finally, I highlight Masnick’s recounting of the themes I described in my article in settings ranging from ringtones to videogames to cable television alternatives.

Michael A. Carrier is a Distinguished Professor at Rutgers School of Law.

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.

Getting to Yes? Thoughts on a BATNA for International Tax

Allison Christians
This piece is Professor Allison Christians’s response to Professor Adam H. Rosenzweig’s article, Thinking Outside the (Tax) Treaty. Professor Rosenzweig’s article is available in the 2012 Print Archive.

In this Reply to Professor Rosenzweig’s article, I seek to affirm that the instinct to look for an international tax BATNA is a good one because the international community appears to be mired in a
negotiated-agreement-or-nothing status quo, with no clear way to save the income tax from evisceration via aggressive tax avoidance and evasion. However, I am afraid that Professor Rosenzweig’s proposed BATNA will fall by the wayside as the United States appears intent on continuing the longstanding tradition of preferring negotiated agreements that use too many sticks and not enough carrots to try to control the international tax order to its own advantage.

Professor Christians holds the H. Heward Stikeman Chair in Tax Law, McGill University Faculty of Law.

Comment on Professor Schwarcz’s Article “Controlling Financial Chaos”

Emilios Avgouleas
This piece is Professor Emilios Avgouleas’s response to Professor Steven L. Schwarcz’s article, Controlling Financial Chaos: The Power and Limits of Law. Professor Schwarcz’s article is available here.

With the devastating impact of the Global Financial Crisis still reverberating around the globe, the Eurozone sinking ever deeper into a sovereign debt and banking crisis, and the developed countries struggling to climb out of the recession trap they have fallen into since 2008, original thinking, like that offered by Professor Steven Schwarcz in his Wisconsin Law Review article[note]Steven L. Schwarcz, Controlling Financial Chaos: The Power and Limits of Law, 2012 Wis. L. Rev. 815.[/note] is very welcome and timely. The academic and policy-making communities share an unusually widespread consensus regarding the causes of the Global Financial Crisis. However, views on the right policies that will restore stability to the global financial system tend to differ sharply.

Professor Avgouleas holds the chair in international banking law and finance at the University of Edinburgh.