I’ve recently been reading some material on IP and antitrust, including Ankur Srivastava’s fascinating article The Anti-Competitive Music Industry and the Case for Compulsory Licensing in the Digital Distribution of Music, 22 Touro L. Rev. 375 (2006). I liked a lot of what Srivastava proposed (as, perhaps, does the EU), but I found myself balking at this rationale for his proposal: the RIAA oligopoly stifles innovation, while P2P services would increase it.
First, I don’t know how one would measure innovation in a creative industry. What’s more innovative: a culture of novelty, that, say, produces 50 different (short-lived) genres of music every year, or a culture of elaboration that creates endless intricate variations in one genre? Even if one plumped for the former as “more innovative,” is that indisputably a better musical culture?
My sense is that, in an age of aesthetic relativism, we can’t really focus on the results of cultural policy, but rather have to critically examine the process behind it. (And if you don’t believe we live in an era of aesthetic relativism, check out the more vociferous comments here!) So to me, the stronger objection to an oligopoly in the music industry is not that it stifles innovation, but rather that something as important to our cultural identity as (the vast bulk of) music recording should not be left to just four major multinationals.
Admittedly, this theme is a leitmotif of Srivastava’s argument, as it must be of any critical use of the antitrust laws. As Spencer Waller shows, there is a democratic foundation to our competition law.