Category Archives: Copyright

In this, my final, post, I�d like to take up the troublesome topic of price discrimination � both with respect to the distribution of audio and video recordings and with respect to sales of pharmaceutical products. My own view, which I�ll try to explain briefly, is that (a) we are likely to see much more price discrimination by the providers of these goods in the near future; (b) price discrimination in the context of entertainment is, on balance, bad; and (c) price discrimination in the context of drugs is, on balance, good. Judgments (b) and (c) are tentative and surely debatable; I�m hoping to elicit reactions. Continue reading →

From the last set of interesting reactions to my proposal for an Alternative Compensation System, I�ve culled a few especially sharp-edged objections. After trying to address them, I turn to the difficult question of what sort of regime is likely to emerge in the entertainment industry if we don�t move toward an ACS. Continue reading →

A sufficient number of interesting responses have been made to my original post on Alternative Compensation Systems that I thought I�d start a new thread. I can�t hope to address all of the themes that have been raised, but here are a few… Continue reading →

Several of the interesting and challenging responses to my original post focused on the merits and demerits of my contention that an alternative compensation system (ACS) would be superior to the copyright system as a way of compensating the creators of recorded entertainment that is distributed online. I had originally intended to save discussion of that topic for later in the week. But it�s understandable that people want to take it up now, so here goes�. I�ll begin with a very brief summary (taken from the Introduction to the book) of my variant of this idea, then address a few of the more serious objections to such a system.
[continued] Continue reading →

Larry has kindly offered me the opportunity to host his blog for a week. My plan is to use the opportunity primarily to catalyze a discussion of the current crisis in the entertainment industry and what potential solutions to it are both attractive and practicable. I recently published a book on the subject: Promises to Keep � Technology, Law, and the Future of Entertainment. The Introduction, which lays out the argument of the book as a whole, and Chapter 6, which has proven to be its most controversial piece, are available online. The book itself can be purchased through any online bookstore.
I thought I�d begin by briefly summarizing the argument of the first chapter, and then ask whether, particularly in light of some recent articles and developments, the argument holds up. Continue reading →

So will MGM v. Grokster fasttrack the Induce Act, as many (here Seth F.) think? Hard to say, but there are some reasons, both from theory and history, to think that it won’t. First, the Grokster decision, by creating a Circuit split, actually creates legal uncertainty that may slow down settlement. Both sides now have a chance to win outright in the Supreme Court. This probably matters more to the electronics industry– with a chance to get everything they want through the Supreme Court, the attraction of settlement decreases. Second, the story of Sony itself was similar in some ways…. Continue reading →

So the question on Grokster-watchers’ minds: Cert? (For non-lawyers: will the Supreme Court hear this case?) My guess is yes, for 7 reasons, ranging from the more to less legal: 1. These is a stated legal conflict on the Sony standard as between the 7th and 9th Circuits; 2. The 7th and 9th Circuits disagree (albeit in partially in dicta) on the relevance of willful blindness to secondary liability; 3. The Court has these matters in hand: it has granted cert. in many similar cases historically (Sony, 1980s, White-Smith (the Piano Roll case) 1909, Teleprompter and Fortnightly (Cable / Broadcast,… Continue reading →

Grokster has won MGM v. Grokster. (By Grokster I mean “Streamcast & Grokster,” hereinafter) Analysis The Ninth Circuit has decided that, on the facts developed, Grokster-style P2P technology is an easy case under Sony. For those unfamiliar with Sony, that decision held VCR manufacturers are not liable for copyright infringement practiced by owners of VCRs. The Court ruling recognized, in other words, that the P2P filesharing technology in programs like KaZaA falls into the same category as typewriters, photocopiers, VCRs, and pencils. All are tools that whose usage is not supervised by the manufacturer, that can be used for both… Continue reading →