April 20, 2003 · Lessig
In his first post, Matt usefully draws together a bunch of current perspectives on the compulsory licensing debate. In his last paragraph, he writes “I’m doubtful that compulsory licensing actually solves the right problem, but I’m curious about what problems led to compulsory licensing in the past.”
There’s been lots written about this, though none that has yet penetrated the policy debate. (I discuss this in two chapters of my book. Here’s a pdf
of the final (uncorrected) draft of those two chapters. Acrobat is on the fritz on my machine, but when I’ve fixed it, I’ll replace this with chapters directly from the book.) The Cliff Note version is that new technologies for distributing content have created the need for a compulsory license.
But then in the second post, Matt provides the best example of just why compulsory licenses have been used in the past. He tells the story of the demise of ReplayTV, which, in large part was caused by the extraordinary burden of litigation that company has had to bear. For years that company has been in litigation defending the right to deploy a digital version of the VCR. The consequence (in part) of that burden is that the company was forced into bankruptcy.
Again, many have written about the insanity of a system that forces new innovators to go to a federal district court to defend the right to innovate, and again, many have written that the real meaning of the Sony Betamax case was that we should allow innovation first (so long as there is a “potential for a substantial non-infringing use”) and let Congress deal with balances later on.
But the key insight from the Sony Betamax case that should have resolved the ReplayTV case quarters ago was that Congress has in the past used lots of tools to “rebalance” the rights of creators in light of new technologies. That should be its role in the future too — its role, not the courts. Congress can work out systems of compensation to assure artists get paid, without giving the dinosaurs of last century control over the innovation today. Or again, compensation without control.