Technology and Business Models

Here some thoughts prompted by the Q&A for Panel 1 at Southwestern’s Copyright Reform Conference.

One idea that came up was the way in which law and technology intersect. Nimmer claimed that the 1976 Act would have addressed DeCSS. Fred von Lohmann said no, Betamax and other cases would have said non-infringing uses mean DeCSS is allowed.

The part that I am not sure worked was when FvL ceded that DVDs would not have been offered had it not been for the DMCA, but that now we don’t need that protection. In other words, the DMCA was necessary in 1977, but not needed for continuing success of the DVD market today. DVDs would still be in play with or without the DMCA.

When I followed up with him he said that the point was that incumbent copyright industry often if not always overstates the way disruptive technologies will impact creation. That point makes more sense to me.

Yet, by ceding that at some point in time one had to have the DMCA to encourage the industry to pursue DVDs, a bigger point comes to the fore. One does not know what technology will or won’t be disruptive. Furthermore, because we don’t know we should allow for more open systems to see what happens. Nonetheless, at least with DVDs we may find that certain technologies will not be pursued without the law agreeing to protect an existing business model.

Put differently, I suggest that if the law is protecting a business model, it should do so for a limited time (and I think that is what FvL was trying to say). This explanation explains the seeming inconsistency with DVDs and the DMCA. One may have to offer protection to stimulate the incumbent or new endeavor. Once that model is flourishing, however, one should cease to offer that protection. Of course as a practical matter, once an industry has that protection, it will not give it up easily. The best question then may be: How do we assess when protection is necessary and when to remove that protection? Simply saying that industry in hindsight overstates the problem or is incorrect about the effects does little to help the system move forward. More on that in follow-up posts about the conference.

Late Recap of the Southwestern Conference About Copyright Reform, Panel 1

A few weeks back, I wrote a post about my views on a big issue in copyright reform and my paper, Copyright’s Hidden Assumption: A Critical Analysis of the Foundations of Descendible Copyright, which addresses what I think will yet again be a major theme in copyright reform: term extension justified as way to provide for heirs. My paper argues that the idea lacks both a historical and theoretical grounding.

As I noted in that post, copyright reform is on many folks’ minds. Southwestern Law School put on a full day conference, Reforming Copyright: Process, Policy and Politics, on the topic.

Here is a recap of the first panel. I do not have Rebecca Tushnet’s skill at live blogging (waiting a few weeks to post this material is evidence of that). The following is what I heard people to say.

The first panel at the Southwestern conference on Copyright Reform framed their topic as: What’s Wrong? The Need to Reform the 1976 Copyright Act: “This panel will consider whether the 1976 Act needs to be reformed and, if so, what form the revision should take. In particular, it will focus on whether reform should take place via gradual increments, as it currently has, or whether it would be superior to scrap the current version of the Copyright Act altogether and begin from a blank slate.”

David Nimmer began the session. He surveyed the history of reform and offered some interesting points. For one thing, the Copyright Office used to studies authorized by Congress to understand how to update the copyright. Nimmer argued that film studios, authors, publishers, music publishers, record labels all influenced the draft bill but broadcasters, juke box owners, and cable television had other interests that stopped a full revision from being passed. Today Consumer electronics, tech companies telcos, amateur authors, bloggers, EFF, ACLU, other NGOs, broadcasters, ISPs, privacy, consumers pull away from the film, professional authors, record labels, music publishers, who move towards a new copyright act.

I understood Nimmer to say that some forces converged on a central point that could agree on reform but there is a “high ratio of centrifugal forces pulling away” from that center. He further suggested that small reforms, what I might call tinkering, allow for a small, defined group of players willing to compromise and in those cases, Congress tends to act and reform/amend the Act. But when diverse, divergent interests are in play, (Markets and social norms at odds), Congress is less likely to act.

He offered that Congress may still be the conduit to achieve informed and balanced copyright legislation, favored new national commissions to evaluate how to proceed, and wondered whether one central person (e.g., the IP Tsar under the Pro IP act) would be able to handle the task of reform.

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